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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN McCLINTOCK, 12 Plaintiff, 13 14 No. 2:13-cv-0264 TLN DB P v. ORDER COLOSIMO, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights 17 18 action under 42 U.S.C. § 1983. Plaintiff alleges defendants Colosimo and Beshears violated his 19 Eighth Amendment right to be free of cruel and unusual punishment when they allowed a door to 20 remain closed on him. In a further scheduling order issued April 14, 2017, the court set a 21 deadline of June 15, 2017 for plaintiff’s pretrial statement. (ECF No. 91.) Plaintiff moves the 22 court for an extension of that deadline because his legal materials were lost or taken. (ECF No. 23 99.) In a separate motion, plaintiff seeks an order from the court requiring an investigative report 24 regarding his missing property. (ECF No. 100.) Plaintiff establishes good cause for an extension of time. However, plaintiff does not 25 26 specify how long he seeks. He states only that he “may” require 90 to 120 days. The court finds 27 a 60-day extension of time reasonable. If plaintiff requires additional time, he may make a 28 //// 1 1 motion. The court will also give defendants a commensurate extension for their pretrial 2 statement. 3 In his motion, plaintiff expresses concerns about paying for the notarization of affidavits 4 of his incarcerated witnesses. Plaintiff is advised that this court does not require notarization of 5 any affidavits to accompany a pretrial statement. See E.D. Cal. R. 280; Apr. 14, 2017 Further 6 Scheduling Order (ECF No. 91). An affidavit is a document which sets out events and facts 7 within the personal knowledge of the affiant. It is defined by Local Rule 101 as “a declaration 8 prepared in accordance with federal law. See 28 U.S.C. § 1746.” Under § 1746, an affidavit 9 executed in the United States must include language in substantially the following form: “I 10 declare (or certify, verify, or state) under penalty of perjury under the laws of the United States of 11 America that the foregoing is true and correct. Executed on (date). (Signature).” 12 In his second motion, plaintiff complains about the lack of an internal affairs investigation 13 report on his missing property. To the extent plaintiff is seeking redress for the taking of his 14 property, plaintiff must seek any relief in a separate suit. He is also informed that if he wishes to 15 make a due process claim in this court based on the deprivation of his property, he must show the 16 deprivation was intentional and “was carried out pursuant to established state procedures, 17 regulations or statutes.” Piatt v. McDougall, 773 F.2d 1032, 1036 (9th Cir. 1985). If the 18 deprivation of his property was not done pursuant to a state procedure, in other words it was 19 unauthorized, then plaintiff cannot state a claim under the Due Process Clause of the Fourteenth 20 Amendment. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). Plaintiff’s remedy for an 21 unauthorized deprivation of his property is through a state tort claim under California 22 Government Code §§ 900, et seq. 23 To the extent plaintiff is informing the court about the basis for delay in his ability to file a 24 pretrial statement, those concerns are addressed by the grant of an extension of time to file that 25 statement. 26 //// 27 //// 28 //// 2 1 Accordingly, and good cause appearing, IT IS HEREBY ORDERED as follows: 2 1. Plaintiff’s June 16, 2017 motion for an extension of time (ECF No. 99) is granted. By 3 August 15, 2017, plaintiff shall file his pretrial statement. Defendants shall filed their 4 pretrial statement by August 31, 2017. 5 6 7 2. Plaintiff’s June 16, 2017 motion for internal affairs to submit a report (ECF No. 100) is denied. Dated: June 21, 2017 8 9 10 11 12 13 DLB:9 DLB1/prisoner-civil rights/mccl0264.pts eot 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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