Harrison v. Milligan et al
Filing
106
ORDER DENYING REQUEST FOR CORRECTIVE ACTION 105 (Illston, Susan) (Filed on 2/10/2014)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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MARCUS L. HARRISON,
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United States District Court
For the Northern District of California
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No. C 09-4665 SI (pr)
Plaintiff,
ORDER DENYING REQUEST FOR
CORRECTIVE ACTION
v.
D. E. MILLIGAN; et al.,
Defendants.
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The court has entered judgment and an appeal is now pending. This matter is before the
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court now for consideration of plaintiff's request for the court "to take corrective action." Docket
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# 105 at 1. Plaintiff urges that the clerk failed to file a request for judicial notice he mailed on
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July 27, 2012 and therefore the court should allow the parties "to re-file [their] dispositive
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motions" so that they can be decided in light of the July 27, 2012 filing. Id. at 2. Plaintiff
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contends the district court erred in not filing his request for judicial notice dated July 27, 2012,
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and urges that the prison records attached to his request prove that he mailed a document to the
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court on July 27, 2012. Plaintiff's argument is unpersuasive. The prison records he offers do
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not show multiple documents being mailed to the court on that date, and the court already has
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a document that matches the mailing date. Specifically, the case management statement and
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request to stay proceedings has a proof of service showing a July 27, 2012 mailing date.
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See Docket # 64 at 19. Even if he could demonstrate that he mailed a document that did not get
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filed, plaintiff (a) fails to note that there was no motion for summary judgment pending when
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he allegedly mailed the document, (b) fails to show that the matters in the document properly
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were subject to judicial notice, see M/V Am. Queen v. San Diego Marine Constr. Corp., 708 F.2d
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1483, 1491 (9th Cir. 1983) (stating general rule that "a court may not take judicial notice of
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proceedings or records in another cause so as to supply, without formal introduction of evidence,
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facts essential to support a contention in a cause before it"), and (c) fails to explain why he did
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not include the information in his opposition to the motion for summary judgment.
Plaintiff also complains that the non-filing of the July 27, 2012 document is part of a
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pattern of the clerk not filing his documents or sending orders to him. As shown in the foregoing
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paragraph, he is wrong about the failure to file; he also is wrong about the failure to send orders.
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He identifies two orders that he claims he never received. First, he asserts that the clerk "failed
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United States District Court
For the Northern District of California
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to send plaintiff a copy of Judge Susan Illston's summary judgment ruling from 9/21/11."
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Docket # 105-1 at 3. The court's records show that the clerk mailed the September 21, 2011
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order to him twice, as evidenced by the "notice of electronic filing or other case activity" for
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Docket # 20, and the unnumbered docket entry on February 28, 2012. To the extent plaintiff
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suggests that he never received the order, he misrepresents the facts, as he specifically stated in
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an earlier filing that he did receive the order, albeit late. See Docket # 36-1 at 1. Second,
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plaintiff asserts that the clerk failed to mail to him the order at Docket # 57. That order,
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however, has a proof of service showing that it was mailed on June 15, 2012. Docket # 57-1.
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There are numerous places where documents can get misdirected or lost between the clerk's desk
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and the prisoner's cell, and his speculation that the error is occurring at the clerk's desk is
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unfounded.
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Plaintiff's request for corrective action is DENIED because he is not entitled to the
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corrective action he seeks. (Docket # 105.) All further motions must be filed in the court of
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appeals during the pendency of the appeal.
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IT IS SO ORDERED.
Dated: February 10, 2014
_______________________
SUSAN ILLSTON
United States District Judge
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