Spencer v. Painter et al

Filing 27

ORDER signed by Magistrate Judge Dale A. Drozd on 1/27/2015 VACATING the 6/26/2014 findings and recommendations 24 ; plaintiff is GRANTED leave to file an amended complaint within 30 days; plaintiff's 23 motion for a court order directing access to his legal property is DENIED; and the Clerk shall serve plaintiff with another copy of the court's 4/10/2014 order and the 5/15/2014 order for his reference. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THURMAN LEROY SPENCER,

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Plaintiff,

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No. 2:13-cv-02108 KJM DAD P

v.

ORDER

S. PAINTER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. The gravamen of plaintiff’s complaint is that prison officials were deliberately

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indifferent to his medical needs when he informed them that he was in pain and required a

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wheelchair to return to his cell; he subsequently collapsed on the floor of the law library and was

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taken for medical treatment, consisting of the administering of 500 mg of Naproxen. Plaintiff

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seeks $500,000 in damages. (Complaint, ECF No. 1.)
On April 10, 2014, the court dismissed the complaint due to plaintiff’s failure to allege

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facts sufficient to state a cognizable claim against the named defendants. (ECF No. 18.) Plaintiff

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was given thirty days to file an amended complaint. (Id.) On May 15, 2014, the court granted

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plaintiff an additional thirty days to file an amended complaint. (ECF No. 22.) Nonetheless,

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plaintiff failed to file an amended complaint within the allotted time.

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Consequently, on June 26, 2014, the undersigned issued findings and recommendations

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recommending that this action be dismissed without prejudice due to plaintiff’s failure to file an

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amended complaint within the time provided to do so. (ECF No. 24.) Plaintiff was therein given

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fourteen days to file objections to the findings and recommendations.

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On July 22, 2014, the June 26, 2014 findings and recommendations were returned to the

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court as “Undeliverable, refused.” By minute order, plaintiff was given until September 29, 2014

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to provide the court with notice of his new address. Plaintiff failed to do so. However, on

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September 8, 2014, plaintiff submitted a request for a copy of the docket sheet in this action. His

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address reflected on that request is the same as the address of record that plaintiff had provided in

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a notice of change of address that he filed with the court on February 3, 2014 (Dkt. No. 12): a

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P.O. Box for mail sent to inmates at Kern Valley State Prison. Moreover, the on-line State of

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California Inmate Locator also shows that plaintiff continues to be incarcerated at Kern Valley

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State Prison. It is therefore unclear whether the June 26, 2014 findings & recommendations were

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undeliverable for any reason other than plaintiff’s refusal to accept them.
On January 20, 2015, plaintiff filed a document with the court entitled “Motion Plaintiff

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Denied Ruling From Court.” (ECF No. 26.) In that document, plaintiff claims that he also did

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not receive a copy of the court’s May 15, 2014 order (ECF No. 21) (i) granting him an additional

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thirty days to file an amended complaint, and (ii) denying his motion for access to his ten boxes

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of legal property and/or unlimited access to the prison law library.

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Because it appears possible that plaintiff may not have received notice of the extension of

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time provided for in the May 15, 2014 order, out of an abundance of caution, the court will vacate

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the June 26, 2014 findings and recommendations and grant plaintiff an additional 30 days within

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which to file an amended complaint if he wishes to continue to pursue this civil rights action.

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However, plaintiff’s failure to timely file an amended complaint will result in a recommendation

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that this action be dismissed without prejudice. Moreover, plaintiff is forewarned that no further

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extensions of time will be granted for this purpose.

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One other matter requires the court’s attention. On June 23, 2014, plaintiff filed a

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renewed motion for access to his ten boxes of legal property. (ECF No. 23). Plaintiff does not

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set forth any reason therein for the return of his property beyond those already set forth in his

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prior motion, with one exception: plaintiff now claims that he is “in need of documents (CDCR-

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602’s) and medical reports regarding this case in his legal property to be able to present his proper

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complaint to court regarding this case[.]” (Id. at 1-2.) If plaintiff wishes to further review these

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records, he does not require access to the ten boxes of his legal property. Instead, he may obtain

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these records from his central file, which must be made available for him to inspect and copy

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pursuant to prison policies and procedures. “Inmates or parolees may review their own case

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records file and unit health records . . . .” Cal. Code Regs., tit. 15, § 3370(c). Accordingly, the

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court will deny plaintiff’s motion for access to his legal property, as he has failed to demonstrate,

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first, that he attempted to obtain the records he requires through the appropriate channels referred

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to above, and second, that his attempts to do so were unsuccessful despite no fault of his.

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Plaintiff is directed to use prison procedures to access his central file and obtain access to the

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documents he believes requires in order to file a first amended complaint.

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In light of the foregoing, IT IS HEREBY ORDERED that:

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1. The court’s June 26, 2014 findings and recommendations (ECF No. 24) are vacated.

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2. Plaintiff is granted leave to file an amended complaint, if he desires to pursue this

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action, within thirty days from the date of this order. Any amended complaint plaintiff

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elects to file must conform to the requirements set forth in the court’s April 10, 2014

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order. (ECF No. 18.)

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3. Plaintiff’s motion for a court order directing access to his legal property (ECF No. 23)

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is denied.

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4. Together with a copy of this order, the Clerk of the Court is directed to serve plaintiff

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with another copy of the court’s April 10, 2014 order (ECF No. 18) and the May 15, 2014

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order (ECF No. 22) for his reference.

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5. Plaintiff’s failure to comply with this order will result in a recommendation that the

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action be dismissed.

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Dated: January 27, 2015

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DAD:10
spen2108.access.second

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