McClintock v. Colosimo, et al

Filing 102

ORDER signed by Magistrate Judge Deborah Barnes on 6/21/2017 GRANTING plaintiff's 99 motion for an extension of time. By 8/15/2017, plaintiff shall file his pretrial statement; defendant shall file their pretrial statement by 8/31/2017. Plaintiff's 100 motion for internal affairs to submit a report is DENIED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN McCLINTOCK,

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Plaintiff,

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No. 2:13-cv-0264 TLN DB P

v.

ORDER

COLOSIMO, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983. Plaintiff alleges defendants Colosimo and Beshears violated his

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Eighth Amendment right to be free of cruel and unusual punishment when they allowed a door to

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remain closed on him. In a further scheduling order issued April 14, 2017, the court set a

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deadline of June 15, 2017 for plaintiff’s pretrial statement. (ECF No. 91.) Plaintiff moves the

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court for an extension of that deadline because his legal materials were lost or taken. (ECF No.

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99.) In a separate motion, plaintiff seeks an order from the court requiring an investigative report

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regarding his missing property. (ECF No. 100.)
Plaintiff establishes good cause for an extension of time. However, plaintiff does not

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specify how long he seeks. He states only that he “may” require 90 to 120 days. The court finds

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a 60-day extension of time reasonable. If plaintiff requires additional time, he may make a

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motion. The court will also give defendants a commensurate extension for their pretrial

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statement.

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In his motion, plaintiff expresses concerns about paying for the notarization of affidavits

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of his incarcerated witnesses. Plaintiff is advised that this court does not require notarization of

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any affidavits to accompany a pretrial statement. See E.D. Cal. R. 280; Apr. 14, 2017 Further

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Scheduling Order (ECF No. 91). An affidavit is a document which sets out events and facts

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within the personal knowledge of the affiant. It is defined by Local Rule 101 as “a declaration

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prepared in accordance with federal law. See 28 U.S.C. § 1746.” Under § 1746, an affidavit

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executed in the United States must include language in substantially the following form: “I

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declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of

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America that the foregoing is true and correct. Executed on (date). (Signature).”

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In his second motion, plaintiff complains about the lack of an internal affairs investigation

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report on his missing property. To the extent plaintiff is seeking redress for the taking of his

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property, plaintiff must seek any relief in a separate suit. He is also informed that if he wishes to

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make a due process claim in this court based on the deprivation of his property, he must show the

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deprivation was intentional and “was carried out pursuant to established state procedures,

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regulations or statutes.” Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985). If the

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deprivation of his property was not done pursuant to a state procedure, in other words it was

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unauthorized, then plaintiff cannot state a claim under the Due Process Clause of the Fourteenth

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Amendment. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff’s remedy for an

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unauthorized deprivation of his property is through a state tort claim under California

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Government Code §§ 900, et seq.

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To the extent plaintiff is informing the court about the basis for delay in his ability to file a

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pretrial statement, those concerns are addressed by the grant of an extension of time to file that

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statement.

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Accordingly, and good cause appearing, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s June 16, 2017 motion for an extension of time (ECF No. 99) is granted. By

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August 15, 2017, plaintiff shall file his pretrial statement. Defendants shall filed their

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pretrial statement by August 31, 2017.

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2. Plaintiff’s June 16, 2017 motion for internal affairs to submit a report (ECF No. 100)
is denied.
Dated: June 21, 2017

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DLB:9
DLB1/prisoner-civil rights/mccl0264.pts eot

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