McClintock v. Colosimo, et al

Filing 108

ORDER signed by Magistrate Judge Deborah Barnes on 08/15/17 granting 104 Motion to Compel. Within 7 days of the filed date of this order, defendants' counsel shall contact the litigation coordinator at MCSP to inform him or her that plaintif f must be permitted to communicate with inmate Rameses immediately. Plaintiff's motion for extension of time 105 is granted. By 9/30/17, plaintiff shall file his pretrial statement and any motions necessary for the attendance of witnesses at trial. By 10/15/17, defendants shall file their pretrial statement. (Plummer, M)

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

Plaintiff,
v.

ORDER

COLOSIMO, et al.,
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 revised scheduling order issued June 21, 2017, the court set a deadline

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of August 15, 2017 for plaintiff’s pretrial statement and August 31, 2017 for defendants’ pretrial

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statement. (ECF No. 102.)

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Plaintiff now moves the court for an extension of that deadline because he has been unable

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to communicate with an incarcerated witness, inmate Rameses. (ECF No. 105.) Plaintiff also

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moves for an order compelling Mule Creek State Prison (“MCSP”) to permit him to communicate

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with this witness. (ECF No. 104.) In an order filed August 2, 2017, the court ordered defendants

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to respond to plaintiff’s “motion to compel.” On August 9, 2017, defendants filed an opposition

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to plaintiff’s motion. (ECF No. 107.)
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Defendants confirm plaintiff’s description of the facts underlying his motion to compel.

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Simply put, plaintiff filed the proper form with prison authorities to be permitted to communicate

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with an incarcerated witness, who he identified by name and prison identification number, but

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was told that he would not be permitted to communicate with that witness unless they were “co-

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litigants.” Defendants state that MCSP is a “sensitive needs prison facility”1 and, as such, has a

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particular need to limit inmate correspondence for the safety and security of the institution.

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Defendants are clear that they had no reason to think plaintiff sought to communicate with inmate

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Rameses for an improper reason. However, defendants also state that Rameses was known as a

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“hit man” prior to his incarceration. According to defendants, one basis for MCSP’s limitation on

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communication between inmates is reducing the possibility of communications that are intended

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to have “hit men” cause harm.
The court denied defendants Colosimo and Beshears’ motion for summary judgment.

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(See ECF Nos. 86, 90.) Thus, this case is now proceeding to trial. As set out in the Further

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Scheduling Order issued on April 14, 2017, along with his pretrial statement, plaintiff must make

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a motion if he wishes to obtain the attendance of incarcerated witnesses at trial. (ECF No. 91.) In

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that motion, plaintiff must provide information about the witness’s willingness to attend trial and

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knowledge of the facts. Plaintiff obviously cannot prepare such a motion without the opportunity

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to communicate with potential witnesses. Plaintiff has no way to communicate with potential

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inmate witnesses except through prison-approved correspondence.

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The court finds plaintiff should be permitted to correspond with any inmate witness who

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may have information material to plaintiff’s case. Plaintiff seeks to correspond with only one

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inmate witness, inmate Rameses. Defendants ask that the court require plaintiff to establish why

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he feels Rameses may have information relevant to his case. However, plaintiff has already done

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so. During his deposition, defendants’ counsel asked plaintiff if he knew the names of any

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Inmates who are designated as “sensitive needs” require housing in a separate environment
because of their inability to program safely in a traditional general population setting. See Padilla
v. Evans, No. C 06-01725 JF (PR), 2009 WL 773525, at *3 (N.D. Cal. Mar. 23, 2009). Among
the inmates designated as “sensitive needs” inmates are those who dropped out of a prison gang
or other disruptive group, who are victims or targets for assault because of their commitment
offense or their age, or who have enemy concerns. Id. at 3 n.2.
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witnesses. (Transcr. of Mar. 10, 2016 Depo. of John McClintock (“Depo.”) at 87, lodged here on

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May 20, 2016 (see ECF No. 80).) Plaintiff responded that he mostly knew inmates’ nicknames.

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The one inmate he identified by name was “Bobby. I think it’s Ramseys.” (Id. at 88.) Plaintiff

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testified that this inmate told plaintiff he had seen “the whole thing.” (Id.) It is not a stretch to

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find that the inmate the court reporter identified as “Ramseys” is inmate Rameses, who plaintiff

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now seeks to contact.

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The court finds plaintiff has established good cause to be permitted to communicate with

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inmate Rameses and his motion requiring MCSP to allow him to do so will be granted. In

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addition, based on plaintiff’s difficulties communicating with Rameses, he has shown good cause

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for an extension of time to file his pretrial statement.

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For the foregoing reasons, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s motion to compel (ECF No. 104) is granted. Within seven days of the filed

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date of this order, defendants’ counsel shall contact the litigation coordinator at MCSP

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to inform him or her that plaintiff must be permitted to communicate with inmate

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Rameses immediately.

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2. Plaintiff’s motion for an extension of time (ECF No. 105) is granted. By September

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30, 2017, plaintiff shall file his pretrial statement and any motions for the attendance

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of witnesses at trial. By October 15, 2017, defendants shall file their pretrial

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statement.

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Dated: August 15, 2017

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DLB:9
DLB1/prisoner-civil rights/mccl0264.pts eot2

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