Ashker v. Alameida et al
Filing
535
ORDER POSTPONING RULING ON PLAINTIFF'S MOTION TO HOLD DEFENDANTS IN CONTEMPT AND ORDERING DEEFNDANTS TO FILE EVIDENCE OF COMPLIANCE WITH COURT'S ORDERS. Signed by Judge Claudia Wilken on 1/10/2012. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 1/10/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TODD ASHKER,
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No. C 05-3759 CW
Plaintiff,
v.
MICHAEL C. SAYRE, et al.,
Defendants.
________________________________/
United States District Court
For the Northern District of California
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ORDER POSTPONING
RULING ON
PLAINTIFF'S MOTION
TO HOLD DEFENDANTS
IN CONTEMPT AND
ORDERING
DEEFNDANTS TO FILE
EVIDENCE OF
COMPLIANCE WITH
COURT'S ORDERS
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On December 19, 2011, Plaintiff Todd Ashker moved for an
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order to show cause why Defendants Pelican Bay State Prison (PBSP)
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Medical Chief Dr. Michael Sayre and Secretary of the California
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Department of Rehabilitation and Corrections (CDCR) Matthew Cate
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should not be held in contempt of this Court for not following the
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Court's orders that Dr. Sayre pay the $6,500 judgment he owes to
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Plaintiff and that Secretary Cate provide Plaintiff with a
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properly fitting arm brace.
On December 20, 2011, Defendants
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filed their opposition to the motion, arguing that they have been
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complying in good faith with the Court's orders.
The motion was
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taken under submission on the papers.
Having considered all the
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papers filed by the parties, the Court postpones ruling on
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Plaintiff's motion to hold Defendants in contempt, orders Dr.
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Sayre to file proof that he has paid Plaintiff the $6,500 judgment
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and orders Secretary Cate to file proof that Plaintiff has
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received a properly fitting arm brace, or proof of the efforts he
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has made to ensure that Plaintiff receive a properly fitting arm
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brace as soon as possible.
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DISCUSSION
On October 19, 2011, the Court granted Dr. Sayre's request
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for a forty-five day extension to comply with its order that he
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pay to Plaintiff the $6,500 judgment.
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to "pay to Plaintiff the judgment together with pre and post-
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judgment interest thereon, by no later than November 28, 2011."
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The Court ordered Dr. Sayre
On December 12, 2011,1 Plaintiff mailed his motion for
United States District Court
For the Northern District of California
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contempt stating that, as of that date, he had not received
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payment of the judgment and that, contrary to the Court's February
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4, 2010 Order for Specific Performance, since October 11, 2011,
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Secretary Cate had deprived him of a properly fitting arm brace.
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In his December 20, 2011 opposition, Dr. Sayre indicates that
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payment to Plaintiff was issued on December 16, 2011. The
unintentional delay was caused by the holiday season and the
CDCR's efforts to issue the entirety of the payment to Mr.
Ashker in one check. In any event, the damages have been
paid.2
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In his opposition, Secretary Cate indicates,
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As thoroughly explained in Defendant Cate's progress report,
the brace was shipped to Sunrise Shoes for adjustment. Put
simply, Mr. Ashker does not have the brace in his possession
because he requested that it be adjusted.
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The motion was filed on the Court's docket on December 19,
2011.
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In Dr. Sayre's December 16, 2011 Progress Report Regarding
Payment of Damages, he indicated that the check was issued on
December 16, 2011 and would be mailed to Plaintiff via Federal
Express on December 19, 2011.
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In Secretary Cate's progress report, also filed on December
20, 2011, he indicates that, on December 12, 2011, he learned that
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PBSP had mailed the arm brace to Sunrise Shoes for adjustments in
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October, 2011, but Sunrise Shoes never received it.
Thus, it was
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determined that the brace had been lost in the mail.
On December
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20, 2011, orthotist Jason Wong of Sunrise Shoes fitted Plaintiff
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for a new arm brace, took the brace to Sacramento to perform the
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adjustments, and "will return the brace upon completion."
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United States District Court
For the Northern District of California
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In Plaintiff's reply, mailed on December 28, 2011, he
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indicates that he still has not received payment of the judgment
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from Dr. Sayre and that he still does not have the arm brace.
Therefore, within three days from the date of this Order, Dr.
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Sayre shall file evidence that Plaintiff received payment of the
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judgment in the form of a receipt or declaration from Plaintiff
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that he received payment.
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he shall file a declaration stating why the judgment has not been
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If Dr. Sayre cannot file such evidence,
paid in compliance with this Court's order and why he indicated in
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his opposition that the judgment had been paid.
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Also, within three days from the date of this Order,
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Secretary Cate shall file evidence that Plaintiff has received a
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properly fitting arm brace.
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brace, Secretary Cate shall file a declaration stating what
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efforts he has made to ensure that Plaintiff receive such an arm
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If Plaintiff has not received the arm
brace, and when Plaintiff will receive it.
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The Court shall not rule on Plaintiff's motion to hold
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Defendants in contempt until it receives these documents from
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Defendants.
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CONCLUSION
For the foregoing reasons, within three days from the date of
this Order, Dr. Sayre shall file proof that Plaintiff has received
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payment of the judgment he owes to Plaintiff and Secretary Cate
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shall file proof that Plaintiff has received a properly fitting
United States District Court
For the Northern District of California
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arm brace or a declaration listing the efforts he has made to
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ensure that Plaintiff receive the arm brace and the current status
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of the arm brace.
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IT IS SO ORDERED.
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Dated: 1/10/2012
CLAUDIA WILKEN
United States District Judge
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