Moore v. Brown & Williamson Tobacco, Corporation et al

Filing 54

ORDER by Judge ARMSTRONG denying 51 Motion ; granting 52 Motion for Extension of Time to File; terminating 53 Motion. Plaintiff to file his amendment to the complaint by 01/05/09. (lrc, COURT STAFF) (Filed on 12/16/2008) Modified on 12/17/2008 (jlm, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA THOMAS EUGENE MOORE, ) ) Plaintiff, ) ) v. ) ) BROWN & WILLIAMSON TOBACCO, ) ) CORPORATION, et al., ) Defendants. ) _________________________________ ) No. C 06-2150 SBA (PR) ORDER (1) GRANTING PLAINTIFF'S MOTION FOR EXTENSION OF TIME TO FILE AN AMENDED COMPLAINT AND (2) ADDRESSING PENDING MOTIONS (Docket nos. 51, 52, 53)

On October 24, 2005, Plaintiff Thomas Eugene Moore, a state prisoner currently incarcerated

11 at Pelican Bay State Prison, filed this civil action in the Monterey County Superior Court, Moore v. 12 Brown & Williamson Tobacco, Corp., et al., Case No. M76478, alleging various claims, including 13 civil rights violations, arising from Plaintiff's use of tobacco products while incarcerated at Salinas 14 Valley State Prison (SVSP) from June 19, 2001 to July 1, 2005. Plaintiff named as Defendants the 15 following corporations: Lane Limited (LL) and Brown & Williamson Tobacco Corporation (B&W), 16 the alleged tobacco manufacturers; as well as Access SecurePak (Access), the alleged retailer of the 17 tobacco products Plaintiff used. Plaintiff has also named as Defendants various prison officials, who 18 purportedly participated in the supply of tobacco and the denial of Plaintiff's administrative claims, 19 including: SVSP Warden Mike Evans; SVSP Canteen Manager E. Beza; SVSP Procurement 20 Services Officer B. Schneider; SVSP Chief of Inmate Appeals N. Grannis; SVSP Appeals 21 Coordinator S. Gomez; SVSP Correctional Lieutenant C. Blackstone; SVSP Physicians I. Grillo and 22 R. Gibbs; and California Department of Corrections and Rehabilitation (CDCR) Director Jeanne 23 Woodford. On March 23, 2006, Defendants removed this matter to federal court. 24 Before the Court are Plaintiff's "Motion for First Extension of Time to File Amended Civil

25 Complaint" (docket no. 52); his "Motion for Court Order to Photocopy Plaintiff's Motions, Amended 26 Complaint, and Process Service Documents" (docket nos. 51); and his motion entitled, "Amended 27 Plaintiff's Motion for Clerk of the Court to Stamp the Seal of Clerk of the Court and the Issuing 28 Court's Name on the Federal Summons" (docket no. 52).

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In an Order dated November 10, 2008, the Court denied Plaintiff's application for in forma

2 pauperis status and dismissed the complaint with leave to amend. The Court dismissed Plaintiff's 3 claim against Defendants Access relating to his use of tobacco products as well as his claims against 4 Defendants Grannis, Blackstone and Gomez relating to the grievance process. Plaintiff's claim 5 against Defendants B&W and LL was found to be cognizable because it constituted a claim for 6 product liability against tobacco manufactures. However, all remaining claims were dismissed with 7 leave to amend. The Court also found that Plaintiff was responsible for effecting service on 8 Defendants B&W and LL as well as on the remaining prison officials who were named as 9 Defendants because his IFP application had been denied. 10 United States District Court For the Northern District of California In an Order dated November 14, 2008, the Court denied Plaintiff's motion requesting the

11 Clerk of the Court to issue summons and the U.S. Marshal to serve the summons and complaint upon 12 Defendants. The Court directed Plaintiff to follow the procedures to properly serve the 13 aforementioned Defendants outlined in the Court's November 10, 2008 Order. 14 In an Order dated December 4, 2008, the Court granted Plaintiff's request for an extension up

15 to and including January 12, 2009 in order to serve the summons and complaint upon the remaining 16 Defendants. The Court also granted Plaintiff's motion requesting the Clerk to send a copy of the 17 federal summons to Plaintiff. 18 Plaintiff has subsequently filed the three above-referenced motions with the Court. Plaintiff 19 claims that he needs an extension to file his amended complaint (including his amended deliberate 20 indifference, supervisory liability and equal protection claims). In his motion, he alleges he is 21 22 23 experiencing difficulty in having the Pelican Bay State Prison (PBSP) Facility B Prison Law Librarian Mrs. J. Evert . . . photocopy the original amended complaint so that [he] can be able to provide a copy to the Deputy Attorney General Paul Hammerness and a copy for [himself] in order that [he] can mail and file this original copy to the Northern District of California.

24 (Motion for EOT to File Am. Compl. at 1.) As mentioned above, he has also filed a motion 25 requesting the Court to order the PBSP law librarian to photocopy certain documents for him. Based 26 on Plaintiff's ability to file numerous documents in his other pending cases, the Court finds that 27 Plaintiff has not shown a need for the photocopying services. See Case Nos. 06-02105 SBA (PR) 28 and C 06-02357 SBA (PR). If Plaintiff is unable to obtain photocopying services in order to meet the 2

1 required deadlines in this case, he may handwrite duplicates of any document he files. Therefore, the 2 Court DENIES his "Motion for Court order to Photocopy Plaintiff's Motions, Amended Complaint, 3 and Process Service Documents" (docket nos. 51). In any event, the Court finds that a brief 4 extension is necessary for Plaintiff to handwrite any duplicates of the documents he intends to file if 5 he is still unable to obtain photocopying services. Accordingly, the Court GRANTS his motion for 6 an extension of time to file amended deliberate indifference, supervisory liability, and equal 7 protection claims (docket no. 52) up to and including January 5, 2009. 8 Finally, the "Amended Plaintiff's Motion for Clerk of the Court to Stamp the Seal of Clerk of

9 the Court and the Issuing Court's Name on the Federal Summons" (docket no. 52) is DENIED 10 because the attached summons to this motion does not contain Defendants' names and addresses. United States District Court For the Northern District of California 11 Thus, the attached summons submitted by Plaintiff is not proper, and he must provide the Clerk with 12 the names and addresses of the Defendants he wishes to serve. Plaintiff must abide by the deadline 13 previously set in the Court's December 4, 2008 Order, and he must serve the summons and complaint 14 upon the Defendants he wishes to serve no later than January 12, 2009. 15 16 17 CONCLUSION For the foregoing reasons, the Court orders as follows: 1. Plaintiff's "Motion for Court order to Photocopy Plaintiff's Motions, Amended

18 Complaint, and Process Service Documents" (docket nos. 51) is DENIED. 19 2. Plaintiff's "Motion for First Extension of Time to File Amended Civil Complaint" 20 (docket no. 52) is GRANTED up to and including January 5, 2009. In its November 10, 2008 21 Order, the Court directed Plaintiff to "resubmit only his deliberate indifference, supervisory liability 22 and equal protection claims." (Nov. 10, 2008 Order at 13.) He was originally directed to label the 23 document with the amended claims his "Amended Complaint." (Id. at 14.) Because the Court 24 directed Plaintiff to amend only those aforementioned claims, Plaintiff is instead directed to label the 25 document "Amendment to the Complaint," and write in the case number for this action, Case No. 26 C 06-02150 SBA (PR). 27 28 3 Plaintiff shall file his amendment to the complaint no later than January 5, 2009. The failure

1 to do so will result in the dismissal of Plaintiff's deliberate indifference, supervisory liability and 2 equal protection claims for failure to state a cognizable claim for relief and for failure to exhaust 3 available administrative remedies. 4 3. Plaintiff's "Amended Plaintiff's Motion for Clerk of the Court to Stamp the Seal of

5 Clerk of the Court and the Issuing Court's Name on the Federal Summons" (docket no. 52) is 6 DENIED. Plaintiff is directed to provide the Clerk with the names and addresses of the Defendants 7 he wishes to serve. Thereafter, he must serve the summons and complaint upon the Defendants he 8 wishes to serve no later than January 12, 2009. 9 4. Because this case has been pending for almost three years, no further extensions of

10 time will be granted in this case absent exigent circumstances. United States District Court For the Northern District of California 11 12 5. This Order terminates Docket nos. 51, 52 and 53.

IT IS SO ORDERED. SAUNDRA BROWN ARMSTRONG United States District Judge

13 DATED:12/12/08 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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1 UNITED STATES DISTRICT COURT FOR THE 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 5 6 v. MOORE et al, Plaintiff, Case Number: CV06-02150 SBA CERTIFICATE OF SERVICE

7 BROWN & WILLIAMSON TOBACCO, CORPORATION et al, 8 Defendant. / 9 10 United States District Court For the Northern District of California I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District 11 Court, Northern District of California. 12 That on December 16, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said 13 envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 14 15 16 Thomas Eugene Moore D-62389 17 Pelican Bay State Prison P.O. Box 7500 18 Crescent City, CA 95532 19 Dated: December 16, 2008 20 21 22 23 24 25 26 27 28
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Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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