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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THURMAN LEROY SPENCER, 12 Plaintiff, 13 14 No. 2:13-cv-02108 KJM DAD P v. ORDER S. PAINTER, et al., 15 Defendants. 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 17 18 U.S.C. § 1983. The gravamen of plaintiff’s complaint is that prison officials were deliberately 19 indifferent to his medical needs when he informed them that he was in pain and required a 20 wheelchair to return to his cell; he subsequently collapsed on the floor of the law library and was 21 taken for medical treatment, consisting of the administering of 500 mg of Naproxen. Plaintiff 22 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 23 24 facts sufficient to state a cognizable claim against the named defendants. (ECF No. 18.) Plaintiff 25 was given thirty days to file an amended complaint. (Id.) On May 15, 2014, the court granted 26 plaintiff an additional thirty days to file an amended complaint. (ECF No. 22.) Nonetheless, 27 plaintiff failed to file an amended complaint within the allotted time. 28 ///// 1 1 Consequently, on June 26, 2014, the undersigned issued findings and recommendations 2 recommending that this action be dismissed without prejudice due to plaintiff’s failure to file an 3 amended complaint within the time provided to do so. (ECF No. 24.) Plaintiff was therein given 4 fourteen days to file objections to the findings and recommendations. 5 On July 22, 2014, the June 26, 2014 findings and recommendations were returned to the 6 court as “Undeliverable, refused.” By minute order, plaintiff was given until September 29, 2014 7 to provide the court with notice of his new address. Plaintiff failed to do so. However, on 8 September 8, 2014, plaintiff submitted a request for a copy of the docket sheet in this action. His 9 address reflected on that request is the same as the address of record that plaintiff had provided in 10 a notice of change of address that he filed with the court on February 3, 2014 (Dkt. No. 12): a 11 P.O. Box for mail sent to inmates at Kern Valley State Prison. Moreover, the on-line State of 12 California Inmate Locator also shows that plaintiff continues to be incarcerated at Kern Valley 13 State Prison. It is therefore unclear whether the June 26, 2014 findings & recommendations were 14 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 15 16 Denied Ruling From Court.” (ECF No. 26.) In that document, plaintiff claims that he also did 17 not receive a copy of the court’s May 15, 2014 order (ECF No. 21) (i) granting him an additional 18 thirty days to file an amended complaint, and (ii) denying his motion for access to his ten boxes 19 of legal property and/or unlimited access to the prison law library. 20 Because it appears possible that plaintiff may not have received notice of the extension of 21 time provided for in the May 15, 2014 order, out of an abundance of caution, the court will vacate 22 the June 26, 2014 findings and recommendations and grant plaintiff an additional 30 days within 23 which to file an amended complaint if he wishes to continue to pursue this civil rights action. 24 However, plaintiff’s failure to timely file an amended complaint will result in a recommendation 25 that this action be dismissed without prejudice. Moreover, plaintiff is forewarned that no further 26 extensions of time will be granted for this purpose. 27 ///// 28 ///// 2 One other matter requires the court’s attention. On June 23, 2014, plaintiff filed a 1 2 renewed motion for access to his ten boxes of legal property. (ECF No. 23). Plaintiff does not 3 set forth any reason therein for the return of his property beyond those already set forth in his 4 prior motion, with one exception: plaintiff now claims that he is “in need of documents (CDCR- 5 602’s) and medical reports regarding this case in his legal property to be able to present his proper 6 complaint to court regarding this case[.]” (Id. at 1-2.) If plaintiff wishes to further review these 7 records, he does not require access to the ten boxes of his legal property. Instead, he may obtain 8 these records from his central file, which must be made available for him to inspect and copy 9 pursuant to prison policies and procedures. “Inmates or parolees may review their own case 10 records file and unit health records . . . .” Cal. Code Regs., tit. 15, § 3370(c). Accordingly, the 11 court will deny plaintiff’s motion for access to his legal property, as he has failed to demonstrate, 12 first, that he attempted to obtain the records he requires through the appropriate channels referred 13 to above, and second, that his attempts to do so were unsuccessful despite no fault of his. 14 Plaintiff is directed to use prison procedures to access his central file and obtain access to the 15 documents he believes requires in order to file a first amended complaint. 16 In light of the foregoing, IT IS HEREBY ORDERED that: 17 1. The court’s June 26, 2014 findings and recommendations (ECF No. 24) are vacated. 18 2. Plaintiff is granted leave to file an amended complaint, if he desires to pursue this 19 action, within thirty days from the date of this order. Any amended complaint plaintiff 20 elects to file must conform to the requirements set forth in the court’s April 10, 2014 21 order. (ECF No. 18.) 22 3. Plaintiff’s motion for a court order directing access to his legal property (ECF No. 23) 23 is denied. 24 4. Together with a copy of this order, the Clerk of the Court is directed to serve plaintiff 25 with another copy of the court’s April 10, 2014 order (ECF No. 18) and the May 15, 2014 26 order (ECF No. 22) for his reference. 27 ///// 28 ///// 3 1 5. Plaintiff’s failure to comply with this order will result in a recommendation that the 2 action be dismissed. 3 Dated: January 27, 2015 4 5 6 7 DAD:10 spen2108.access.second 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?