(PC) Pangborn v. Strong et al

Filing 41

ORDER signed by Magistrate Judge Chi Soo Kim on 8/28/2024 DENYING 39 Motion, to the extent plaintiff's response to defendants' status report is a renewed motion for legal supplies and for appointment of counsel, or a request for reconsideration of 38 Order. 40 Pleading, docketed as objections, is DISREGARDED. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID PANGBORN,

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Plaintiff,

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No. 2:23-cv-2976 DAD CSK P

v.

ORDER

C/O PETERSON, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for appointment of counsel

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and for legal supplies filed August 19, 2024. (ECF No. 39.) Also pending is a pleading docketed

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as objections to the August 8, 2024 order filed by inmate Brandon Vu, allegedly on plaintiff’s

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behalf. (ECF No. 40.) For the following reasons, plaintiff’s motion is denied and the objections

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are disregarded.

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I.

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BACKGROUND
This action is set for a settlement conference before Magistrate Judge Carolyn Delaney on

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September 9, 2024. (ECF No. 32.) In the minute order setting the settlement conference, Judge

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Delaney directed the parties to submit confidential settlement statements seven days prior to the

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settlement conference. (Id.) This action is stayed until the date of the settlement conference.

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(ECF No. 33.)
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On July 22, 2024, plaintiff filed a motion for access to legal supplies and legal property

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and for appointment of counsel. (ECF No. 34.) In this motion, plaintiff alleged that on June 22,

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2024, California Medical Facility (“CMF”) Correctional Officer Pacada and CMF Sergeant

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Johnson confiscated and/or destroyed plaintiff’s legal supplies and legal property related to this

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action based on orders from CMF Captain Strickland. (Id.) Plaintiff stated that he could not

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participate in the settlement conference without access to his legal property related to this action

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and legal supplies. (Id.) Plaintiff also claimed that, with the exception of envelopes, he was not

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allowed to purchase legal supplies at the canteen. (Id.) Plaintiff also claimed that his requests to

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order legal supplies were denied. (Id.)

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On July 25, 2024, this Court issued an order expressing concern regarding plaintiff’s

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ability to participate in the September 9, 2024 settlement conference without access to his legal

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property related to the instant action and legal supplies. (ECF No. 35.) This Court ordered

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defendants to file a status report addressing plaintiff’s allegations regarding plaintiff’s legal

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property related to the instant action and legal supplies. (Id.) This Court also ordered defendants

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to address whether plaintiff currently had access to his legal property related to the instant action

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and legal supplies in order to prepare for and participate in the September 9, 2024 settlement

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conference. (Id.)

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On August 5, 2024, defendants filed a status report in response to the July 25, 2024 order.

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(ECF No. 37.) In the status report, defendants stated that on June 19, 2024, plaintiff was placed

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in the restricted housing unit (“RHU”). (Id. at 5.) Defendants stated that while not permitted to

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make purchases from outside vendors, inmates in the RHU were permitted to spend $75 per

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month at the CMF canteen, where they may purchase, in relevant part, envelopes, writing tablets

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and postage stamps. (Id. at 5, 17.) Plaintiff was not classified as an indigent inmate. (Id. at 5.)

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Defendants also stated that inmates in the RHU were able to request a pen filler. (Id.)

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Defendants stated that plaintiff’s property was stored in the RHU property office because plaintiff

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currently had fourteen boxes of legal material which far exceeded the property allowance for an

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RHU cell. (Id. at 2.) Plaintiff retained the ability to access the items stored in the RHU property

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office and to switch the box currently stored in his cell with one of the boxes currently in storage.
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(Id.) On July 3, 2024, the RHU property officer asked plaintiff if he recovered everything he

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needed, to which plaintiff replied, “I’m good now.” (Id. at 5-6.)

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On August 8, 2024, this Court denied plaintiff’s motion for access to legal supplies and

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legal property and for appointment of counsel filed July 22, 2024. (ECF No. 38.) This Court

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found that defendants’ response to the July 25, 2024 order demonstrated that plaintiff’s legal

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property was put in storage after plaintiff was placed in the RHU on June 29, 2024. (Id. at 3.) On

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July 3, 2024, plaintiff was permitted to review his fourteen boxes of legal materials and retain

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some of his legal property in his cell. (Id.) Defendants’ response also demonstrated that plaintiff

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had the ability to access his remaining items stored in the RHU property office and to switch the

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box currently in his cell with one of the boxes currently in storage. (Id.) This Court also found

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that it appeared that plaintiff’s legal supplies may have also been placed in storage, to which

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plaintiff had access. (Id. at 4.) In the alternative, defendants represented that plaintiff could

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purchase envelopes, paper and stamps from the canteen and was provided with a pen filler. (Id.)

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Finally, this Court found that plaintiff failed to meet his burden of demonstrating exceptional

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circumstances warranting the appointment of counsel. (Id. at 5.)

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II.

DISCUSSION

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A. Plaintiff’s Motion For Appointment of Counsel and Legal Supplies

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Plaintiff’s pending motion appears to be a response to defendants’ status report filed

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August 5, 2024, rather than a new motion for legal supplies and appointment of counsel. It does

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not appear that plaintiff had received the August 8, 2024 order when he prepared the pending

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motion, which bears Plaintiff’s signature dated August 8, 2024. (See ECF No. 39 at 1.)

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Plaintiff’s filing also responds to specific issues raised in defendants’ status report. This Court

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also observes that plaintiff filed the same pleading in his other action, case no. 2:23-cv-00825

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KJM-AC-P, which is also set for a settlement conference before Judge Delaney on September 9,

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2024. (See ECF No. 39 at 1 (caption listing both case nos. 2:23-cv-2976-DAD-CSK and 2:23-cv-

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00825 KJM-AC).)

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The Court therefore interprets plaintiff’s filing in this case as a response to defendants’
status report filed August 5, 2024, rather than as a new motion for legal supplies and appointment
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of counsel, or as a motion for reconsideration. In plaintiff’s current filing, plaintiff alleges that

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Correctional Officer Pacada and Sergeant Johnson (whom plaintiff now identifies as Correctional

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Officer Johnson) destroyed five boxes of his property containing documents related to all of

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plaintiff’s active cases. (ECF No. 39 at 1.) Plaintiff alleges that he gave up his Kosher breakfast

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for a stamp and envelope in order to mail the pending motion. (Id.) Plaintiff alleges that he was

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allowed to look at the legal property that was not destroyed but all the boxes issued to plaintiff

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since June 19, 2024 do not contain documents from the instant action. (Id.) Plaintiff claims that

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Warden Quevas denied his request for access to his legal supplies stating, “You should of thought

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about these losses before 602ing my staff.” (Id. at 1, 5.) Plaintiff filed another declaration from

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inmate Brandon Vu in support of his claim regarding Warden Quevas’s alleged statement. (Id. at

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2.) Plaintiff alleges that his requests to go through all of his property have been denied. (Id. at 1.)

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Plaintiff requests appointment of counsel to assist him with the instant action because he has

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“nothing to go off of.” (Id.)

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As stated above, in the status report filed August 5, 2024, defendants represented that

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plaintiff had access to his fourteen boxes of legal property stored in the RHU property office.

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In addition, defendants represented that plaintiff had access to a pen filler and could purchase

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envelopes, paper and stamps from the canteen. Plaintiff’s response to defendants’ status report

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does not change the Court’s evaluation of plaintiff’s motion. In the unlikely event that plaintiff’s

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filing is a request to reconsider the Court’s August 8, 2024 order denying plaintiff’s motion filed

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July 22, 2024 requesting access to his legal property and legal supplies and for appointment of

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counsel, that request for reconsideration is denied because plaintiff has failed to establish new or

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different facts or circumstances that did not exist when he filed his July 22, 2024 motion. See

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Local Rule 230(j) (requirements for applications for reconsideration).

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It is unclear from plaintiff’s filing whether he can participate in the upcoming September

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9, 2024 settlement conferences as his filing includes inconsistent statements. On the one hand,

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plaintiff appears to claim that he can participate in the settlement conference set for case no. 2:23-

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cv-0825 KJM-AC, but not in the settlement conference set for the instant action. (Id.) But his

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filing also includes a statement that he cannot participate in “either settlement conference.” (Id.)
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If plaintiff is unable to participate in either settlement conference currently scheduled for

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September 9, 2024, he shall promptly either file a request to continue the settlement conferences

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or submit a statement to Judge Delaney with the status of his participation in the upcoming

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settlement conferences.

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B. Objections filed August 26, 2024

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On August 26, 2024, inmate Brandon Vu filed a pleading titled “Rebuttal Motion,”

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docketed as objections to the August 8, 2024 order. (ECF No. 40.) In this pleading, inmate Vu

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states that plaintiff dictated the pleading to inmate Vu because plaintiff does not have access to

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paper or pen fillers. (Id. at 1.) This pleading appears to address the order filed August 8, 2024, as

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it is signed by inmate Vu on August 20, 2024. (Id. at 3.)
Federal Rule of Civil Procedure 11 provides that every pleading, written motion or other

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paper must be signed by a party personally if the party is unrepresented. The pleading filed

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August 26, 2024 does not comply with Rule 11 because it is not signed by plaintiff. For this

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reason, the pleading filed August 26, 2024 is disregarded.

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III.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. To the extent plaintiff’s response to defendants’ status report is a renewed motion for

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legal supplies and for appointment of counsel, or a request for reconsideration of the Court’s

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August 8, 2024 order (ECF No. 39), plaintiff’s motion is denied; and
2. The pleading filed August 26, 2024 (ECF No. 40), docketed as objections, is

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disregarded.

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Dated: August 28, 2024

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Pang2976.ord(5)

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