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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1 FILED 2 FEB 162016 3 CLERK US DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA BY DEPUTY 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 15 Case No.: 3: 14-cv-0788 BTM (KSC) JEFF E. WALKER, CDCR #F-I1343, v. C/O D. HUBERT, et aI., Defendant. 16 ORDER DENYING PLAINTIFF'S MOTION TO REQUEST ACCESS TO A TYPEWRITER AND MOTION FOR RECONSIDERATION. Doc. Nos. 101; 104 17 Plaintiff, a state prisoner proceeding pro se 1 and in forma pauperis filed this action 18 pursuant to 42 U.S.C. ยง 1983. Before the Court are plaintiffs Motion to Request Access to 19 a Typewriter [Doc. No. 101] and Motion for Reconsideration [Doc. No. 104.] Plaintiff 20 seeks a court order to address several grievances concerning his access to the Court as well 21 as reconsideration of the Court's Order [Doc. No. 99] denying his request for access to a 22 typewriter. For the reasons articulated below, plaintiffs Motion to Request Access to a 23 Typewriter [Doc. No. 101] and Motion for Reconsideration [Doc. No. 104] are DENIED. 24 /II 25 26 27 28 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) 1 I. Quality of Legal Documents 2 Plaintiff asserts that "copies mailed or given to light not readable" and that some of 3 the pages or exhibits are missing. [Doc. No. 101, at p. 3.] Plaintiff offers no other additional 4 details nor is it clear what form of relief Plaintiff is seeking. The Court takes judicial notice 5 that plaintiff has provided responsive filings to all of the Court's orders as well as the 6 communications from defendant. Accordingly, plaintiffs Motion concerning the quality 7 of his legal documents is DENIED. 8 II. Opening Legal Mail 9 Plaintiff asserts that his legal mail is being opened and read outside of his presence. 10 [Doc. No. 101, at p. 3.] In support of his motion, plaintiff references "Vickie" who "sent 11 in Christmas card [sic] with notice legal [sic] written on outside of mail." Id. Plaintifflater 12 clarifies that Vickie is a witness in one of his cases. Id. There is no evidence that Vickie or 13 any other person sending mail to the plaintiff is a lawyer. Plaintiff has a right to 14 communicate confidentially with a lawyer. Plaintiff does not have a right to avoid the 15 regular screening process by labeling items as "legal mail." See Dung v. Alameda Cty. 16 Sheriff Dep't, No. C 03-2911 WHA PR, 2003 WL 21982659, at *1 (N.D. Cal. Aug. 5, 17 2003) ("The stamp on the envelope saying that it must be opened in the presence of the 18 inmate [or labeling the document as legal mail] does not define plaintiffs constitutional 19 rights.") The Ninth Circuit has held that envelopes that carry the "legal mail" notation even 20 from courts, as opposed to communication from a prisoner's lawyer, are not legal mail 21 entitled to enhanced protection. Keenan v. Hall, 83 F.3d 1083, 1094 (9th Cir. 1996). 22 Plaintiff has provided no evidence indicating that communications from a lawyer are being 23 opened outside of his presence. Therefore, plaintiffs request for an order concerning his 24 mail is DENIED. 25 III. Access to Legal Supplies 26 Plaintiff asserts that he doesn't have access to sufficient legal supplies. [Doc. No. 27 101, at p. 3.] Plaintiff asserts that he is not receiving sufficient legal supplies and that he 28 should be receiving an "unlimited" amount because of his in forma pauperis status. Id. 2 3:14-cv-0788 BTM (KSC) 1 Plaintiff materially misunderstands the in forma pauperis statute. The in forma pauperis 2 statute is a privilege created by Congress, not a Constitutional right. Smart v. Heinze, 347 3 F .2d 114, 116 (9th Cir. 1965). The right to access the Court, established in Bounds v. Smith, 4 430 U.S. 817 (1977), does requires prison authorities to provide, at state expense, the 5 supplies required to access the court including pen and paper. Id at 824-825. Ensuring 6 prisoners have sufficient supplies to adequately access the Court does not create a de facto 7 requirement to provide "unlimited resources" as plaintiff demands. 8 Here, plaintiff has demonstrated a clear ability to access the court. The Declaration 9 ofN. Gregoratos, Director of Prisoner Legal Services, indicates that from June 2015 until 10 December 2015 plaintiff had a minimum of 172 contacts with the prison legal staff. [Doc. 11 No. 106-1, at pp. 1-2.] The 172 contacts consisted largely of, "supplying [plaintiff] with 12 case law and other legal materials." Id. at 2. Plaintiff filing history in this case presents 13 additional evidence of his ability to access the court. From April 2014 until January 2016, 14 plaintiff filed twenty-nine motions constituting hundreds of pages. [Doc. Nos, 2; 5; 9; 13; 15 17' 19' 21' 23' 32' 34' 38' 40' 43' 50' 53' 60' 64' 67' 69' 75' 78' 85' 89' 90' 93' 97' 101' 16 17 """"""""""" 104; 105.] Consequently, plaintiffs Motion regarding legal supplies is DENIED. IV. , Motion to Reconsider 18 Motions for reconsideration are only appropriate in rare or highly unusual 19 circumstances to correct manifest errors of fact or law or to consider an intervening change 20 in the controlling law or newly discovery evidence. School Dist. No. JJ v. ACandS, Inc., 5 21 F.3d 1255, 1263 (9th Cir. 1993). When seeking reconsideration, a party's moving papers 22 must include an affidavit setting forth any new or different facts that did not exist when the 23 prior requestfor relief was made. CivLR 7.1(i). 24 Here, plaintiffs Motion for Reconsideration presents the same arguments and facts 25 presented in his original motion. The Court notes that plaintiff filed his original Complaint 26 on April 3, 2014. [Doc. No.1.] Subsequently, plaintiff filed twenty-five legible handwritten 27 motions before filing a motions requesting access to a typewriter on December 14, 2015. 28 [Doc. No. 97.] Additionally, plaintiff has indicated his involvement in at least three other 3 3:14-cv-0788 BTM (KSC) 1 court cases he is actively perusing without the aid of a typewriter. Therefore, plaintiff's 2 Motion for Reconsideration must be DENIED. CONCLUSION 3 4 For the reason stated above, plaintiff's Motion to Request Access to a Typewriter 5 [Doc. No. 101] and Motion for Reconsideration [Doc. No. 104] are DENIED. 6 IT IS SO ORDERED. 7 Date: Led? ,1- ,2016 8 9 10 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3: 14-cv-0788 BTM (KSC)

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