Walker v. Hubert et al
Filing
108
ORDER Denying Plaintiff's 101 104 Motion to Request Access to a Typewriter and Motion for Reconsideration. Signed by Magistrate Judge Karen S. Crawford on 2/12/2016. (All non-registered users served via U.S. Mail Service)(rlu)
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FILED
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FEB 162016
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CLERK US DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
BY
DEPUTY
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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Plaintiff,
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Case No.: 3: 14-cv-0788 BTM (KSC)
JEFF E. WALKER,
CDCR #F-I1343,
v.
C/O D. HUBERT, et aI.,
Defendant.
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ORDER DENYING PLAINTIFF'S
MOTION TO REQUEST ACCESS
TO A TYPEWRITER AND MOTION
FOR RECONSIDERATION.
Doc. Nos. 101; 104
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Plaintiff, a state prisoner proceeding pro se 1 and in forma pauperis filed this action
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pursuant to 42 U.S.C. ยง 1983. Before the Court are plaintiffs Motion to Request Access to
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a Typewriter [Doc. No. 101] and Motion for Reconsideration [Doc. No. 104.] Plaintiff
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seeks a court order to address several grievances concerning his access to the Court as well
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as reconsideration of the Court's Order [Doc. No. 99] denying his request for access to a
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typewriter. For the reasons articulated below, plaintiffs Motion to Request Access to a
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Typewriter [Doc. No. 101] and Motion for Reconsideration [Doc. No. 104] are DENIED.
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/II
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Plaintiff requests an order declaring him a "pro per" litigant. See [Doc. Nos. 93; 97; 101.] Pro se
and pro per are legally equivalent terms denoting a litigant who, without the aid of a lawyer, represents
himself before a court. Compare PRO SE, Black's Law Dictionary (10th ed. 2014) with PRO PER,
Black's Law Dictionary (lOth ed. 2014).
3:14-cv-0788 BTM (KSC)
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I.
Quality of Legal Documents
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Plaintiff asserts that "copies mailed or given to light not readable" and that some of
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the pages or exhibits are missing. [Doc. No. 101, at p. 3.] Plaintiff offers no other additional
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details nor is it clear what form of relief Plaintiff is seeking. The Court takes judicial notice
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that plaintiff has provided responsive filings to all of the Court's orders as well as the
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communications from defendant. Accordingly, plaintiffs Motion concerning the quality
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of his legal documents is DENIED.
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II.
Opening Legal Mail
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Plaintiff asserts that his legal mail is being opened and read outside of his presence.
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[Doc. No. 101, at p. 3.] In support of his motion, plaintiff references "Vickie" who "sent
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in Christmas card [sic] with notice legal [sic] written on outside of mail." Id. Plaintifflater
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clarifies that Vickie is a witness in one of his cases. Id. There is no evidence that Vickie or
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any other person sending mail to the plaintiff is a lawyer. Plaintiff has a right to
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communicate confidentially with a lawyer. Plaintiff does not have a right to avoid the
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regular screening process by labeling items as "legal mail." See Dung v. Alameda Cty.
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Sheriff Dep't, No. C 03-2911 WHA PR, 2003 WL 21982659, at *1 (N.D. Cal. Aug. 5,
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2003) ("The stamp on the envelope saying that it must be opened in the presence of the
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inmate [or labeling the document as legal mail] does not define plaintiffs constitutional
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rights.") The Ninth Circuit has held that envelopes that carry the "legal mail" notation even
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from courts, as opposed to communication from a prisoner's lawyer, are not legal mail
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entitled to enhanced protection. Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996).
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Plaintiff has provided no evidence indicating that communications from a lawyer are being
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opened outside of his presence. Therefore, plaintiffs request for an order concerning his
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mail is DENIED.
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III.
Access to Legal Supplies
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Plaintiff asserts that he doesn't have access to sufficient legal supplies. [Doc. No.
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101, at p. 3.] Plaintiff asserts that he is not receiving sufficient legal supplies and that he
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should be receiving an "unlimited" amount because of his in forma pauperis status. Id.
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3:14-cv-0788 BTM (KSC)
1 Plaintiff materially misunderstands the in forma pauperis statute. The in forma pauperis
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statute is a privilege created by Congress, not a Constitutional right. Smart v. Heinze, 347
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F .2d 114, 116 (9th Cir. 1965). The right to access the Court, established in Bounds v. Smith,
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430 U.S. 817 (1977), does requires prison authorities to provide, at state expense, the
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supplies required to access the court including pen and paper. Id at 824-825. Ensuring
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prisoners have sufficient supplies to adequately access the Court does not create a de facto
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requirement to provide "unlimited resources" as plaintiff demands.
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Here, plaintiff has demonstrated a clear ability to access the court. The Declaration
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ofN. Gregoratos, Director of Prisoner Legal Services, indicates that from June 2015 until
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December 2015 plaintiff had a minimum of 172 contacts with the prison legal staff. [Doc.
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No. 106-1, at pp. 1-2.] The 172 contacts consisted largely of, "supplying [plaintiff] with
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case law and other legal materials." Id. at 2. Plaintiff filing history in this case presents
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additional evidence of his ability to access the court. From April 2014 until January 2016,
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plaintiff filed twenty-nine motions constituting hundreds of pages. [Doc. Nos, 2; 5; 9; 13;
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17' 19' 21' 23' 32' 34' 38' 40' 43' 50' 53' 60' 64' 67' 69' 75' 78' 85' 89' 90' 93' 97' 101'
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"""""""""""
104; 105.] Consequently, plaintiffs Motion regarding legal supplies is DENIED.
IV.
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Motion to Reconsider
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Motions for reconsideration are only appropriate in rare or highly unusual
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circumstances to correct manifest errors of fact or law or to consider an intervening change
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in the controlling law or newly discovery evidence. School Dist. No. JJ v. ACandS, Inc., 5
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F.3d 1255, 1263 (9th Cir. 1993). When seeking reconsideration, a party's moving papers
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must include an affidavit setting forth any new or different facts that did not exist when the
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prior requestfor relief was made. CivLR 7.1(i).
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Here, plaintiffs Motion for Reconsideration presents the same arguments and facts
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presented in his original motion. The Court notes that plaintiff filed his original Complaint
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on April 3, 2014. [Doc. No.1.] Subsequently, plaintiff filed twenty-five legible handwritten
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motions before filing a motions requesting access to a typewriter on December 14, 2015.
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[Doc. No. 97.] Additionally, plaintiff has indicated his involvement in at least three other
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3:14-cv-0788 BTM (KSC)
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court cases he is actively perusing without the aid of a typewriter. Therefore, plaintiff's
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Motion for Reconsideration must be DENIED.
CONCLUSION
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For the reason stated above, plaintiff's Motion to Request Access to a Typewriter
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[Doc. No. 101] and Motion for Reconsideration [Doc. No. 104] are DENIED.
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IT IS SO ORDERED.
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Date:
Led? ,1-
,2016
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United States Magistrate Judge
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3: 14-cv-0788 BTM (KSC)
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