Ashker et al v. Schwarzenegger et al

Filing 64


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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 TODD ASHKER and DANNY TROXELL, No. 09-05796 CW 5 Plaintiffs, 6 v. 7 EDMUND G. BROWN, JR., et al., 8 Defendants. 9 / ORDER FOR FURTHER BRIEFING ON PLAINTIFFS’ MOTION FOR PROTECTIVE ORDER PROHIBITING RETALIATORY ACTS AND FOR RETURN OF PROPERTY United States District Court For the Northern District of California 10 11 Pro se Plaintiffs Todd Ashker and Danny Troxell, inmates at 12 Pelican Bay State Prison (PBSP), move for a protective order 13 prohibiting retaliatory acts and for return of property. Defendants 14 have filed an opposition and Plaintiffs have filed a reply. 15 matter was taken under submission on the papers. The Having considered 16 all the papers filed by the parties, the Court denies the motion, in 17 part, and orders further briefing. 18 BACKGROUND 19 On June 6, 2011, PBSP Sergeants J. Frisk and J. Pieren and 20 Officers Morgan, Pimental and Knight of the Institutional Gang 21 Investigation Unit (IGI) searched Plaintiffs’ cells and removed 22 Plaintiffs’ papers, books, magazines, internet articles and personal 23 items. On June 15, 2011, Sgts. Frisk and Pieren returned some of 24 the items they had taken. Sgt. Pieren issued Mr. Ashker a serious 25 rule violation report, also known as a CDC Form 115, for having a 26 picture of a phoenix, which Sgt. Pieren states is a gang symbol. 27 Mr. Ashker claims it was an exhibit in one of his legal cases. 28 Plaintiffs state that the items are newspaper articles, 1 magazines and legal booklets that are important to this case and 2 letters, wall calendars, body lotion, and other personal items that 3 are not gang-related or related to this case. Plaintiffs claim that 4 the IGI officials retaliated against them for filing this lawsuit, 5 in violation of the First Amendment, and that they need a protective 6 order to prevent IGI officials from confiscating their legal 7 material in the future. Plaintiffs also seek an order requiring 8 Defendants to return their property to them. Defendants state that 9 they searched Plaintiffs’ cells to ensure institutional security and United States District Court For the Northern District of California 10 safety in light of the impending state-wide hunger strike. 11 Defendants claim that the IGI officials followed prison regulations 12 and properly confiscated altered magazines, altered clothing, 13 altered newspaper clippings and books and magazines possessed in 14 excess of institutional rules. 15 16 DISCUSSION The Court notes that the IGI officials who confiscated 17 Plaintiffs’ property are not named Defendants in this action and, 18 therefore, the Court does not have jurisdiction over them. No First 19 Amendment claim against these individuals can be brought in this 20 lawsuit. Similarly, Mr. Ashker’s claim that the CDC Form 115 21 violation report was unwarranted would have to be litigated in a 22 separate lawsuit after he exhausted his administrative remedies. 23 However, the Court can determine if Plaintiffs’ ability to 24 litigate this lawsuit is being impeded by the improper confiscation 25 of materials related to this action. Sgts. Frisk and Pieren state 26 that they confiscated many of the items because they were “altered.” 27 However, they do not define, “altered,” or indicate how the 28 2 1 “alteration” turns the items into contraband. They claim they 2 confiscated papers belonging to other inmates but do not explain how 3 they knew this to be the case, why that required confiscation and 4 what they did with the papers. Defendants cite PBSP regulations 5 that they claim allow the IGI officials to confiscate the items they 6 took from Plaintiffs. However, without more information about these 7 items, the Court cannot determine whether the IGI officials acted 8 properly. See 28 C.F.R. § 543.11(d)(2) (staff may allow inmate to 9 possess legal materials necessary for inmate’s own legal actions; United States District Court For the Northern District of California 10 staff may allow inmate to possess legal materials of another 11 inmate). 12 Therefore, Defendants are ordered to submit to the Court a 13 further explanation of the basis for confiscating any documents that 14 may be related to this case. They must describe the confiscated 15 materials individually, along with the factual and legal basis for 16 confiscation. If certain excess books or papers were placed in 17 storage, they must be logged. Defendants’ explanation must be 18 submitted fourteen days from the date of this order. Plaintiffs may 19 respond within fourteen days thereafter. 20 21 IT IS SO ORDERED. 22 23 Dated: 10/12/2011 CLAUDIA WILKEN United States District Judge 24 25 26 27 28 3 1 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 2 3 TODD ASHKER et al, Case Number: CV09-05796 CW 4 Plaintiff, CERTIFICATE OF SERVICE 5 v. 6 ARNOLD SCHWARZENEGGER et al, 7 Defendant. 8 / 9 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 Court, 10 Northern District of California. 11 That on October 12, 2011, 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 12 envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 13 14 15 Danny Troxell Pelican Bay State Prison 16 B76578 P.O. Box 7500 17 D1-120 Crescent City, CA 95532 18 Todd Ashker C58191 19 Pelican Bay State Prison P.O. Box 7500 20 D1-SHU Crescent City, CA 95532 21 Dated: October 12, 2011 22 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk 23 24 25 26 27 28 4

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