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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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 TODD ASHKER, 5 6 7 8 9 No. C 05-3759 CW Plaintiff, v. MICHAEL C. SAYRE, et al., Defendants. ________________________________/ United States District Court For the Northern District of California 10 ORDER POSTPONING RULING ON PLAINTIFF'S MOTION TO HOLD DEFENDANTS IN CONTEMPT AND ORDERING DEEFNDANTS TO FILE EVIDENCE OF COMPLIANCE WITH COURT'S ORDERS 11 On December 19, 2011, Plaintiff Todd Ashker moved for an 12 order to show cause why Defendants Pelican Bay State Prison (PBSP) 13 Medical Chief Dr. Michael Sayre and Secretary of the California 14 Department of Rehabilitation and Corrections (CDCR) Matthew Cate 15 should not be held in contempt of this Court for not following the 16 Court's orders that Dr. Sayre pay the $6,500 judgment he owes to 17 Plaintiff and that Secretary Cate provide Plaintiff with a 18 properly fitting arm brace. On December 20, 2011, Defendants 19 filed their opposition to the motion, arguing that they have been 20 complying in good faith with the Court's orders. The motion was 21 taken under submission on the papers. Having considered all the 22 papers filed by the parties, the Court postpones ruling on 23 Plaintiff's motion to hold Defendants in contempt, orders Dr. 24 Sayre to file proof that he has paid Plaintiff the $6,500 judgment 25 and orders Secretary Cate to file proof that Plaintiff has 26 received a properly fitting arm brace, or proof of the efforts he 27 28 1 has made to ensure that Plaintiff receive a properly fitting arm 2 brace as soon as possible. 3 DISCUSSION On October 19, 2011, the Court granted Dr. Sayre's request 4 5 for a forty-five day extension to comply with its order that he 6 pay to Plaintiff the $6,500 judgment. 7 to "pay to Plaintiff the judgment together with pre and post- 8 judgment interest thereon, by no later than November 28, 2011." 9 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 10 11 contempt stating that, as of that date, he had not received 12 payment of the judgment and that, contrary to the Court's February 13 4, 2010 Order for Specific Performance, since October 11, 2011, 14 Secretary Cate had deprived him of a properly fitting arm brace. 15 In his December 20, 2011 opposition, Dr. Sayre indicates that 16 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 17 18 19 20 In his opposition, Secretary Cate indicates, 21 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. 22 23 24 25 26 27 28 1 The motion was filed on the Court's docket on December 19, 2011. 2 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. 2 1 2 In Secretary Cate's progress report, also filed on December 20, 2011, he indicates that, on December 12, 2011, he learned that 3 PBSP had mailed the arm brace to Sunrise Shoes for adjustments in 4 October, 2011, but Sunrise Shoes never received it. Thus, it was 6 determined that the brace had been lost in the mail. On December 7 20, 2011, orthotist Jason Wong of Sunrise Shoes fitted Plaintiff 8 for a new arm brace, took the brace to Sacramento to perform the 9 adjustments, and "will return the brace upon completion." 5 United States District Court For the Northern District of California 10 In Plaintiff's reply, mailed on December 28, 2011, he 11 indicates that he still has not received payment of the judgment 12 13 14 from Dr. Sayre and that he still does not have the arm brace. Therefore, within three days from the date of this Order, Dr. 15 Sayre shall file evidence that Plaintiff received payment of the 16 judgment in the form of a receipt or declaration from Plaintiff 17 that he received payment. 18 he shall file a declaration stating why the judgment has not been 19 If Dr. Sayre cannot file such evidence, paid in compliance with this Court's order and why he indicated in 20 his opposition that the judgment had been paid. 21 22 Also, within three days from the date of this Order, 23 Secretary Cate shall file evidence that Plaintiff has received a 24 properly fitting arm brace. 25 brace, Secretary Cate shall file a declaration stating what 26 efforts he has made to ensure that Plaintiff receive such an arm 27 If Plaintiff has not received the arm brace, and when Plaintiff will receive it. 28 3 1 The Court shall not rule on Plaintiff's motion to hold 2 Defendants in contempt until it receives these documents from 3 Defendants. 4 5 6 CONCLUSION For the foregoing reasons, within three days from the date of this Order, Dr. Sayre shall file proof that Plaintiff has received 7 payment of the judgment he owes to Plaintiff and Secretary Cate 8 9 shall file proof that Plaintiff has received a properly fitting United States District Court For the Northern District of California 10 arm brace or a declaration listing the efforts he has made to 11 ensure that Plaintiff receive the arm brace and the current status 12 of the arm brace. 13 14 15 IT IS SO ORDERED. 16 17 Dated: 1/10/2012 CLAUDIA WILKEN United States District Judge 18 19 20 21 22 23 24 25 26 27 28 4

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