Lavery v. Dhillon

Filing 97

ORDER signed by Magistrate Judge Allison Claire on 3/7/16 ORDERING that plaintiff's requests for accommodations ( 57 , 58 , 65 , 71 , 76 , 77 , 80 ) are GRANTED in part and DENIED in part. Plaintiff's request for a court order gra nting access to a typewriter is DENIED without prejudice. Plaintiff's request for assistance using the E-law library is GRANTED to the extent that the Deputy Attorney General is directed to file within 10 days from the filing date of this orde r an updated statement of accommodations, as set forth above; Plaintiff's request to speak with the court by phone (ECF No. 62 ) is DENIED; Plaintiff's motion for an extension of time (ECF No. 70 ) is DENIED; Within 30 days from the f iling date of this order, plaintiff shall file the documents referenced in his first amended complaint that support his allegations against defendants Dhillon, Clark, Ditomas, and Rading. Defendant Clark, Rading, and Ditomas motion to dismiss (ECF No. 47 ) and defendant Dhillons motion to dismiss (ECF No. 53 ) are VACATED without prejudice to renewal once plaintiff files the above exhibits. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH LAVERY,

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Plaintiff,

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No. 2:13-cv-2083 MCE AC P

v.

ORDER

B. DHILLON, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed

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pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at California Medical Facility

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(“CMF”) in Vacaville, California, where the alleged violations of plaintiff’s rights took place.

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This order addresses defendants’ motions to dismiss the complaint, as well as various motions

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filed by plaintiff regarding writing-related accommodations.

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I.

Background

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This action proceeds against defendants Dhillon,1 Clark, Ditomas, and Rading on the first

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amended complaint, filed February 11, 2014. ECF No. 30. The complaint alleges that defendant

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Dhillon violated plaintiff’s constitutional rights under the Eighth Amendment when he failed to

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provide plaintiff with adequate medical treatment after a nurse hit plaintiff’s sciatic nerve while

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Defendant Dhillon is represented by private counsel.
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giving him an injection. Id. at 2, 3. The complaint further alleges that defendants Clark,

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Ditomas, and Rading denied plaintiff’s emergency appeals and other requests for treatment and

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medical care. See id.

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On March 30, 2015, defendants Clark, Ditomas, and Rading filed a motion to dismiss

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plaintiff’s first amended complaint. ECF No. 47. On April 23, 2015, plaintiff filed a document

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stating that he opposed defendants’ motion, and requesting access to a typewriter. ECF No. 50.

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Between April 18, 2015 and May 11, 2015, plaintiff filed three additional requests for a

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typewriter or assistance with writing. See ECF Nos. 51, 54, 55. Plaintiff explained in his

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motions that his degenerative arthritis makes it difficult for him to handwrite documents. See id.

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On May 11, 2015, defendant Dhillon filed a motion to dismiss.2 ECF No. 53.

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On June 16, 2015, the court issued an order directing the Deputy Attorney General to file

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a statement explaining what accommodations are available to accommodate plaintiff’s disability.

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ECF No. 59. Prior to receiving the court’s June 16, 2015 order, plaintiff filed several additional

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requests for accommodations. See ECF Nos. 57, 58, 62.

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On June 25, 2015, plaintiff filed a motion for reconsideration of the court’s June 16, 2015
order, ECF No. 63, followed by another motion for assistance, ECF No. 65.

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On July 1, 2015, the district judge denied plaintiff’s motion for reconsideration. ECF No.
66. On July 10, 2015, plaintiff filed a “status report.” ECF No. 68.

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On July 17, 2015, the Deputy Attorney General filed a Statement of Available

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Accommodations indicating that plaintiff has access to writing-related accommodations but has

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not taken advantage of them in that he has not asked for assistance. ECF No. 67 at 3.

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On July 20, 2015, plaintiff filed a response to the order denying plaintiff’s motion for

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reconsideration. ECF No. 69. On August 20, 2015, plaintiff filed a motion for an extension of

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time to file another response to the order denying his motion for reconsideration. ECF No. 70.

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Plaintiff thereafter continued to file notices, letters, supplements, and requests concerning his

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Plaintiff has not filed a separate opposition to defendant Dhillon’s motion to dismiss.
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desire for law library accommodations and medical treatment. See ECF Nos. 71, 73, 74, 75, 76,

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77, 78, 79, 80, 82, 83, 87, 88, 89, 90, 91, 92, 93, 94.

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II.

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At the outset, plaintiff is warned that if he continues to inundate the court with repetitive

Excessive Filings by Plaintiff

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and piecemeal filings, they will be disregarded due to the excessive burden they place upon the

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court. Given this court’s caseload and the volume of documents filed by plaintiff, it is almost

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impossible to respond to all of plaintiff’s filings. However, the court will attempt to address the

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most serious and clearly stated issues.3

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III.

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Request for Accommodations
A. Defendants’ Statement of Available Accommodations

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In response to the court’s June 16, 2015 order, the Deputy Attorney General filed a

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Statement of Available Accommodations indicating that the following accommodations are

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available at the CMF Law Library for inmates with writing-related disabilities:

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[1.] The Library at CMF provides four typewriters to prisoners on a
first-come-first serve basis. Prisoners may request additional time
from the librarian on an as-needed basis. If a librarian cannot
immediately accommodate a prisoner asking to use a typewriter, or
for additional typewriter time, they will issue a pass for the prisoner
to return at a time when the Library is not at capacity. Prisoners
may also bring their own personal typewriters into the Library,
subject to restrictions based upon maintaining the security of staff
and other prisoners. Librarians on staff would not deny a prisoner
immediate access to a typewriter for any reason other than the four
typewriters provided in the Library are already in use. The Library
also provides prisoners with five to ten sheets of paper upon
request. (Cheng, Delcr. ¶¶ 3, 5-6).

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[2.] Prisoners with pending court deadlines may apply for Priority
Library User (PLU) status by filling out an Inmate Law Library
Access Request Form and providing a copy of a court order, or
other proof, of a court deadline within thirty-days of the PLU
request. (Id., at ¶¶ 4-5, Exhibit 1).

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[3.] Prisoners may request that a staff librarian assign a Library
clerk to assist prisoners with legal research questions, technical
problems and with handwriting legal documents, dictated by the

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To the extent plaintiff seeks injunctive relief related to an incident that occurred during
plaintiff’s physical therapy session on November 23, 2015, this will be addressed in a separate
order. See ECF Nos. 81, 85.
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prisoner, without providing any documentation of a disability. (Id.,
at ¶¶ 2, 6).

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ECF No. 67 at 2-3.
In support of the Statement of Available Accommodations, the Deputy Attorney General

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submitted the declaration of Y. Cheng, Senior Prison Law Librarian at California Medical

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Facility. ECF No. 67-1. In his declaration, Cheng explains that the library is open seven days a

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week to accommodate prisoners who work full time; that prisoners who need additional time with

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library typewriters or other accommodations due to a writing-related disability can request the

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librarian’s assistance without providing any documentation of disability; and that when a prisoner

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requests additional library time, the librarian will either allow the prisoner to remain in the library

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or will provide the prisoner with a library pass to return on a different day or time when the

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library can accommodate him. Id. at 2-3.

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The Deputy Attorney General explained that although plaintiff has access to writing-

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related accommodations, plaintiff has “not taken advantage of these accommodations because he

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has not asked for assistance.” ECF No. 67 at 3. According to Cheng’s declaration, between

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August 17, 2012 and June 25, 2015, plaintiff did not request any assistance from library clerks or

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any writing-related accommodations, and did not request PLU status. ECF No. 67-1 at 3. Cheng

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further indicated that in June 2015, plaintiff received additional library time after requesting it

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from a librarian on staff. Id.
B. Plaintiff’s Explanation of Needed Accommodations

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Plaintiff has filed a litany of motions, notices, and requests essentially arguing that the

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accommodations described in Cheng’s declaration are not truly available to plaintiff or do not

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sufficiently accommodate plaintiff’s disability. See ECF Nos. 70, 71, 73, 74, 76, 77, 78, 80; see

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also ECF Nos. 54, 55, 57, 58, 62, 63, 65, 68, 69. Due to the volume and repetitive nature of

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plaintiff’s filings, the court will summarize plaintiff’s issues below rather than address each filing

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individually.

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

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Plaintiff has limited use of his hands. Plaintiff is in a wheelchair and has
degenerative arthritis in both hands. Because writing by hand is very painful,
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plaintiff needs assistance with writing and access to a functional typewriter in the
law library.

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

Plaintiff does not have adequate access to a functional typewriter in the law
library. The typewriters in the law library are available on a first come first serve
basis only. There are four or fewer typewriters, which is not enough for the 28
inmates allowed in the library at any given time. Because of his disability,
plaintiff requires more time than a “normal” person when using the typewriter.
Plaintiff has requested additional typewriter time, but his requests were denied by
librarian Sanchez. The typewriters in the law library are sometimes out of
typewriter ribbon and are therefore nonfunctional.

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Plaintiff does not have adequate assistance conducting legal research.
Research in the law library is done on the E-law library. Because of plaintiff’s
arthritis, it takes him four to five times longer than a normal person to use the Elaw library. Furthermore, the location of the E-law library in relation to the
typewriters prevents plaintiff from being able to conduct effective legal research.
Because of his arthritis, plaintiff cannot take notes by hand when using the E-law
library and needs to use a typewriter. However, the typewriters are located on the
other side of the room from the E-law library and inmates are not permitted to use
the typewriter and E-law library at the same time. As a result, plaintiff cannot take
notes or write down case names when using the E-law library.

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Plaintiff does not have adequate time in the law library. Because of his
disability, it takes plaintiff many days to do what a “normal” person could do in
one or two hours in the library. Plaintiff has asked for more library time in the
past and was told he could not receive more than four hours of library time, even
with his disability and need for a typewriter.

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Plaintiff’s work schedule interferes with his ability to receive assistance in the
law library. In August 2014, plaintiff was given a full time work assignment.
Plaintiff alleges that he was given the full time assignment in order to prevent him
from litigating this case. Because plaintiff works from 8:30 a.m. to 3:30 p.m.
Monday through Friday, plaintiff can only go to the law library on Saturday and
Sunday. LTA MacAtee, who assisted plaintiff in the past,4 works in the library
Monday through Friday only. The other inmates who could assist plaintiff also
work only Monday through Friday. As a result, there is no one to help plaintiff in
the law library on Saturday and Sunday.

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Plaintiff’s requests for assistance have been denied. When plaintiff asked
Senior Librarian Cheng for assistance, Cheng said to come back in four days.5
Cheng also informed plaintiff that if he wants more help, he needs a court order.
As a result, plaintiff has had to beg other inmates for assistance. However, these

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Plaintiff’s request for counsel received by the court on March 2, 2015 appears to have been
prepared by LTA McAtee. See ECF No. 40. The form indicates that McAtee is a Library
Technical Assistant employed by CDCR. See id. at 3.
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It is unclear if plaintiff returned to the library four days later to receive assistance.
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inmates are getting tired of helping plaintiff and will not continue to provide
assistance in the future. Because of “prison politics,” inmates choose to provide
assistance to some inmates but not to others, hindering plaintiff’s efforts to obtain
assistance. Plaintiff also appears to allege that he is unable to get assistance in the
library because he is required to sit in the wheelchair area, and has not been
offered the same opportunities for assistance that other inmates in wheelchairs
receive.

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Plaintiff’s requests for PLU status have been denied. Plaintiff alleges that he
“has been having problems getting priority ducat passes.” Even with a court
deadline, plaintiff still cannot get a priority ducat until three weeks later. This
affects plaintiff because when the prison is on lockdown, only those with priority
ducats are allowed to go to the law library.



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Relief Sought: Plaintiff seeks a phone call with the court to discuss plaintiff’s
accommodation issues and a court order granting plaintiff access to a functional
typewriter, assistance with writing, and additional time in the law library.

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C. Discussion of Available Accommodations

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At the outset, the court notes that the sheer volume of plaintiff’s filings undermines

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plaintiff’s assertion that he has not been able to obtain writing-related assistance in the law

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library, as the majority of plaintiff’s recent filings have been typed (apparently with the assistance

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of other inmates). In the last two months alone, plaintiff has filed seven letters or notices to the

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court, all of which have been typed. Given the recent volume of typed filings submitted by

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plaintiff, it appears that plaintiff’s issues with general typewriter access have been resolved.

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Accordingly, to the extent plaintiff requests a court order granting him general access to a

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typewriter, the request is denied as moot.

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However, plaintiff’s allegations suggest that in addition to typewriter access, plaintiff

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requires assistance conducting research on the E-law library. Specifically, it appears that plaintiff

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is not able to take notes while conducting research using the E-law library because the typewriters

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are not located near the E-law library, and plaintiff cannot take notes by hand. Plaintiff’s issue

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with the E-law library appears to be further complicated by the fact that plaintiff is in a

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wheelchair, which apparently affects which part of the library plaintiff is allowed to sit in.

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The Statement of Accommodations filed by defendants suggests that the law library at
CMF is equipped to accommodate plaintiff’s disability. Specifically, it appears that plaintiff can

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request that the librarian assign a clerk to assist plaintiff with “legal research questions” and

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“technical problems.” ECF No. 67 at 3. Presumably, this clerk would be able to assist plaintiff

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with using the E-law library and with taking notes. Defendants’ Statement also indicates that a

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library clerk could handwrite documents dictated by plaintiff, id., thereby minimizing the concern

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regarding typewriter availability.

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It is not clear to the court whether plaintiff has specifically requested that the librarian

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assign a clerk to assist plaintiff in the law library. Librarian Cheng states in his declaration that

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his search of the Library Assistance Log indicated that plaintiff did not request assistance from

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library clerks or other writing-related accommodations between August 17, 2012 and June 25,

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2015. However, the court’s own record suggests that plaintiff requested assistance on at least one

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occasion (though perhaps not through formal channels), as plaintiff’s motion for appointment of

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counsel was prepared by CDCR employee LTA McAtee in January 2015, apparently to

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accommodate plaintiff’s disability. See ECF No. 40. Thus, it appears that the Library Assistance

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Log does not necessarily reflect all inmate requests for assistance.

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Plaintiff also states he asked librarian Cheng for assistance and was told to come back in

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four days. ECF No. 76 at 2. However, it is unclear whether plaintiff returned four days later to

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receive assistance. In another document filed in October 2015, plaintiff states that he asked the

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Senior Law Librarian “for assistance (per Declaration by Y. Cheng 8th July 2015),” but did not

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receive assistance. ECF No. 79 at 2. Plaintiff goes on to state that no accommodations are being

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provided while using the E-Law Library. Id.

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It is not entirely clear whether plaintiff has followed the proper channels for requesting

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assistance in the law library, or that plaintiff returned to receive assistance when instructed to do

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so by the law librarian. However, in an abundance of caution, the court will require defendants to

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address plaintiff’s specific assertion that he is not being provided with assistance using the E-law

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library and taking notes on his research. Accordingly, the Deputy Attorney General is directed to

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file a statement with the court within ten (10) days indicating whether a library clerk would be

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able to assist an inmate such as plaintiff, who is in a wheelchair, with physically using the E-law

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library, taking notes, and handwriting a document dictated by the inmate. The statement should
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clearly spell out the procedures for requesting this type of assistance. If the procedure is to fill

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out a form requesting assistance, the statement should indicate how an inmate who has trouble

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using his hands should request assistance if he is unable to fill out the form.

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Plaintiff shall not file any additional motions or responses until the court has

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received the Deputy Attorney General’s updated statement. Once the Deputy Attorney

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General’s statement has been filed, plaintiff may, but is not required to, file one document

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responding to the statement. Any additional responses relating to the statement will be

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disregarded.

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IV.

Request for Extension of Time (ECF No. 70)

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On August 20, 2015, plaintiff requested an extension of time to respond to the July 2,

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2015 order denying plaintiff’s motion for reconsideration.6 ECF Nos. 70, 71. It is clear from

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plaintiff’s motion that his request is based entirely on his desire to continue explaining why he

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requires a typewriter and other writing-related accommodations, as he has done in numerous

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other motions.7 See ECF No. 71 at 2-3. Plaintiff’s motion is denied.

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V.

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Defendant Clark, Ditomas, and Rading’s motion to dismiss and defendant Dhillon’s

Motions to Dismiss (ECF Nos. 47 & 53)

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separate motion to dismiss are currently pending before the court. ECF Nos. 47, 53. In their

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motions, defendants move to dismiss the first amended complaint for failure to state a claim upon

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which relief can be granted.

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In the first amended complaint, plaintiff alleges that defendants were deliberately

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indifferent to his serious medical needs, and indicates that he has administrative grievances, sick

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call requests, and “other medical paperwork” relevant to his allegations that are not attached to

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Plaintiff had filed a motion for reconsideration of this court’s June 16, 2015 order denying his
request for appointment of counsel and requiring further briefing on the writing-related
accommodations available to plaintiff. ECF No. 63. On July 2, 2015, the district judge denied
plaintiff’s motion for reconsideration and noted that plaintiff’s writing-related accommodations
would be addressed by the magistrate judge after defendants filed their Statement of
Accommodations. ECF No. 66.
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The court also notes that, prior to requesting an extension of time, plaintiff had already filed a
brief response to the order denying plaintiff’s motion for reconsideration. See ECF No. 69.
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the complaint. See ECF No. 30 at 6. Upon review of the motions to dismiss, the court has

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determined that neither motion can properly be resolved on the merits without consideration of

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the documents referenced in plaintiff’s first amended complaint. While plaintiff has submitted a

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number of piecemeal filings containing various administrative grievances and other requests, it is

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not clear that any of these are the same documents referenced in the complaint.

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Accordingly, the court will direct plaintiff to compile the documents referenced in his first

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amended complaint that he believes support his allegations against defendants Clark, Ditomas,

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Rading, and Dhillon. Plaintiff shall submit these documents to the court as a single filing.

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Plaintiff should label the filing “Exhibits to the First Amended Complaint.” Plaintiff shall submit

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these documents only once.
Defendants’ motions to dismiss are vacated without prejudice to their renewal once

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plaintiff files the above exhibits. Once defendants re-file their motions to dismiss, plaintiff shall

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file a revised opposition to each motion. Plaintiff is advised that he must separately oppose

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each motion. In other words, plaintiff must file one opposition to defendant Clark, Ditomas, and

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Rading’s motion to dismiss, and a separate opposition to defendant Dhillon’s motion to dismiss.

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Once plaintiff files his oppositions, defendants may file revised replies.

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VI.

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Plaintiff must stop filing miscellaneous letters, notices, and updates with the court.

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Summary of Directions to Plaintiff

Plaintiff should not file any other documents unless directed to do so by the court.
At this time, plaintiff may file only the “Exhibits to the First Amended Complaint.”

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This should consist of the documents (such as health care appeals or medical records) that

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plaintiff referred to in his First Amended Complaint that support his claims against defendants.

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These documents should be submitted as one single filing. Once plaintiff submits these

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documents, he should not submit them again. These are the only documents plaintiff may file

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at this time.

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After the Deputy Attorney General files an updated statement of accommodations,

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plaintiff may file one response. If plaintiff asserts that he is still not receiving assistance with the

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E-Law Library, he must clearly explain how he requested assistance, what type of assistance he
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requested, and what he was told in response to his request. Plaintiff is advised that in requesting

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assistance, he must follow the procedures outlined in the Deputy Attorney General’s updated

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statement of accommodations. For example, if plaintiff is told to return on another day to receive

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assistance, plaintiff must do so.

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After defendant Clark, Ditomas, and Rading re-file their motion to dismiss, plaintiff must

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file an opposition to defendant Clark, Ditomas, and Rading’s motion to dismiss. If plaintiff needs

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an extension of time to file his opposition, plaintiff may file a request for additional time. The

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request for additional time should be no more than one page.

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After defendant Dhillon re-files his motion to dismiss, plaintiff must file an opposition to

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defendant Dhillon’s motion to dismiss. If plaintiff needs an extension of time to file his

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opposition, plaintiff may file a request for additional time. The request for additional time should

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be no more than one page.

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At this time, plaintiff may not file any additional documents other than those listed above.

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Finally, plaintiff is advised that the court has received plaintiff’s motion for injunctive

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relief regarding the incident that allegedly occurred during plaintiff’s physical therapy session on

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November 23, 2015. The court will address this issue in a separate order. Plaintiff must not file

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any additional updates, letters, or other documents regarding this incident unless directed to do so

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by the court. Any additional filings not authorized by the court will be disregarded.

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VII.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s requests for accommodations (57, 58, 65, 71, 76, 77, 80) are granted in part

Conclusion

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and denied in part. Plaintiff’s request for a court order granting access to a typewriter is denied

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without prejudice. Plaintiff’s request for assistance using the E-law library is granted to the

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extent that the Deputy Attorney General is directed to file within ten (10) days from the filing

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date of this order an updated statement of accommodations, as set forth above;

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2. Plaintiff’s request to speak with the court by phone (ECF No. 62) is denied;

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3. Plaintiff’s motion for an extension of time (ECF No. 70) is denied;

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4. Within thirty days from the filing date of this order, plaintiff shall file the documents
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referenced in his first amended complaint that support his allegations against defendants Dhillon,

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Clark, Ditomas, and Rading. Plaintiff shall file these documents as a single exhibit labeled

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“Exhibits to the First Amended Complaint.” Plaintiff shall submit these documents only once.

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5. Defendant Clark, Rading, and Ditomas’ motion to dismiss (ECF No. 47) and defendant

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Dhillon’s motion to dismiss (ECF No. 53) are vacated without prejudice to renewal once plaintiff

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files the above exhibits;

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6. Upon re-notice of the motions to dismiss, plaintiff shall have 30 days to oppose each

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motion. Plaintiff must file a separate opposition to each motion, meaning that he should file one

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opposition to defendant Rading, Clark, and Ditomas’ motion to dismiss, and another opposition to

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defendant Dhillon’s motion to dismiss. Following the filing of plaintiff’s respective oppositions,

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defendants shall have seven days to file a revised reply.

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DATED: March 7, 2016

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