Dahl v. Virga, et al.

Filing 27

ORDER signed by Magistrate Judge Allison Claire on 8/6/15 ORDERING that the AG is requested to contact appropriate officials at the California Department of Corrections and Rehabilitation and/or the appropriate prisons, and obtain the following info rmation for the period June 1, 2015 to the date of inquiry: (1) whether plaintiff currently has possession of all his property; (2) if not, identify the property that is not in plaintiffs possession, its current location, and an explanation for its c urrent location ; (3) whether and, if applicable, when, plaintiff will obtain possession of specific missing personal property; and (4) whether and, if applicable, why, any specific item of plaintiffs personal property has been permanently confiscate d or deemed permanently missing. Within 21 days after the filing date of this order, the AG is requested to file and serve a supplemental status report setting forth the above-requested information. Plaintiffs Second Amended Complaint is dismissed with leave to amend. Clerk of Court is directed to: a. Serve a copy of this order on the Office of the California Attorney General, Attention: Supervising Deputy Attorney General Monica N. Anderson. b. Send plaintiff, together with a copy of this order, a blank copy of the form used by prisoners in this district to commence a civil rights action pursuant to 42 U.S.C. § 1983. (cc Monica Anderson)(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT EDWARD DAHL, JR.,

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No. 2:14-cv-0949 AC P

Plaintiff,
v.

ORDER

TIMOTHY VIRGA, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to

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42 U.S.C. 1983. Pursuant to the court’s order filed April 22, 2015, ECF No. 16, plaintiff has filed

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a Second Amended Complaint (SAC), ECF No. 20, seeking the return of several items of

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personal property premised on putative due process claims. See also ECF Nos. 21, 23-5 (wherein

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plaintiff further itemizes his missing property). Plaintiff has also filed a notice stating in pertinent

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part that he misidentified two defendants in his SAC. See ECF No. 26. For this reason, the court

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will dismiss the SAC, and grant plaintiff leave to file a Third Amended Complaint (TAC), after

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he has had the opportunity to review the supplemental response provided by the Office of the

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California Attorney General or her designee (AG) requested herein.

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On June 4, 2015, the AG made a special appearance in this action responsive to the

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court’s May 21, 2015 request, see ECF No. 19, that the AG inquire into the current location of

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plaintiff’s property. The AG’s response notes that plaintiff was transferred eight times among
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five institutions since June 2012. See ECF No. 22-1 at 1, ¶ 3 (Decl. of T. Worthy, AG Senior

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Legal Analyst). This includes at least two transfers since plaintiff commenced this action on

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April 17, 2014. See id. at 2, ¶¶ 7-8 (noting transfers on Apr. 30, 2014, and July 16, 2014).

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Subsequent to the filing of the AG’s response, plaintiff was again transferred, and is currently

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incarcerated at Kern Valley State Prison (KVSP). See ECF No. 25.

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The AG’s response notes that plaintiff was deprived of three boxes of his property for a

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six-month period (December 12, 2014 to June 17, 2014), while housed at two different

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institutions. See Worthy Decl. at 2, ¶¶ 6-7. Plaintiff’s property remained at California State

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Prison-Sacramento (CSP-SAC), despite his December 12, 2013 transfer to KVSP, and April 30,

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2014 transfer to the California Medical Facility (CMF). These three boxes of property were

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transferred from CSP-SAC to CMF on June 17, 2014. However, CMF confiscated one of the

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boxes (“consisting of excessive books and magazines”), and provided plaintiff with only two

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boxes of his property. Id. at ¶ 7. A month later, on July 16, 2014, plaintiff was transferred from

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CMF back to CSP-SAC, with two boxes of property; the third (confiscated) box apparently

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remaining at CMF. Id. at ¶¶ 7-8. Thereafter, in response to an administrative grievance plaintiff

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filed at CSP-SAC, plaintiff was informed that yet another (fourth) box of his property remained at

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KVSP, and would be sent to him at CSP-SAC. Id. at ¶ 8. The AG states, “KVSP is currently

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investigating whether the box [at KVSP] . . . was sent to [plaintiff] at CSP-SAC or if it is still

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located at KVSP.” Id. at ¶ 9. A couple of weeks later, plaintiff was transferred back to KVSP.

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See ECF No. 25.

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The undersigned finds it appropriate to request that the AG again inquire into the
location(s) of plaintiff’s personal property and provide a supplemental response.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

The AG is requested to contact appropriate officials at the California Department of

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Corrections and Rehabilitation and/or the appropriate prisons, and obtain the following

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information for the period June 1, 2015 to the date of inquiry: (1) whether plaintiff currently has

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possession of all his property; (2) if not, identify the property that is not in plaintiff’s possession,

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its current location, and an explanation for its current location ; (3) whether and, if applicable,
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when, plaintiff will obtain possession of specific missing personal property; and (4) whether and,

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if applicable, why, any specific item of plaintiff’s personal property has been permanently

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confiscated or deemed permanently missing.

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2. Within twenty-one (21) days after the filing date of this order, the AG is requested to
file and serve a supplemental status report setting forth the above-requested information.

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3. Plaintiff’s Second Amended Complaint is dismissed with leave to amend.

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4. On or before October 1, 2015, and after plaintiff has reviewed the AG’s supplemental

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status report, plaintiff may file a proposed Third Amended Complaint that identifies the

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appropriate defendants and refines plaintiff’s claims and requested relief. Plaintiff is directed to

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this court’s order filed April 22, 2015, ECF No. 16, which sets forth the elements for stating a

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cognizable due process claim premised on the confiscation of a prisoner’s personal property.

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5. Plaintiff’s failure to timely file a Third Amended Complaint will result in the dismissal
of this action without prejudice.

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6. The Clerk of Court is directed to:

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a. Serve a copy of this order on the Office of the California Attorney General, Attention:

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Supervising Deputy Attorney General Monica N. Anderson.
b. Send plaintiff, together with a copy of this order, a blank copy of the form used by

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prisoners in this district to commence a civil rights action pursuant to 42 U.S.C. § 1983.

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DATED: August 6, 2015

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