Lambert v. Dennis

Filing 82

ORDER RE PENDING MOTIONS; striking pltf's 67 Motion to Amend; granting pltf's 70 Motion to Withdraw Document ; granting in part and denying in part pltf's 71 Motion for Extension of Time; denying pltf's 72 Motion ; de nying pltf's 73 Motion for Order; denying 77 Motion to Amend. ; denying pltf's 79 Motion for Disclosure; granting in part and denying in part pltf's 80 Motion for Order; striking dft's 29 Motion for Summary Judgment; discovery ddl extended to 6/1/16; dispositive motion ddl extended to 7/1/16 by Hon. Mary Alice Theiler.**5 PAGE(S), PRINT ALL**(Joshua Lambert, Prisoner ID: 807036)(RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOSHUA D. LAMBERT,
Plaintiff,

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CASE NO. C15-1213-RSM-MAT

v.
ORDER RE: PENDING MOTIONS

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CHIEF WILLIAM DENNIS, et al.,
Defendants.

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Plaintiff Joshua Lambert proceeds pro se and in forma pauperis (IFP) in this civil rights

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action pursuant to 42 U.S.C. § 1983. There are numerous motions pending before the Court.

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Having considered those motions, any papers filed in opposition, and the remainder of the

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record, the Court finds and concludes as follows:

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(1)

Plaintiff filed a Motion for Leave to Amend his Authentication of his Grievances

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(Dkt. 67), followed shortly thereafter by a Motion to Withdraw and/or Strike [the Motion to

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Amend] (Dkt. 70). In the latter, plaintiff states he wishes to withdraw the motion for leave to

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amend “because if summary judgment is granted I wish to write a motion to amend regarding

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everything stated in that order[,]” and because he wrote it “in haste” and wanted to change his

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argument. (Dkt. 70 at 1-2.) Plaintiff’s motion to withdraw and/or strike (Dkt. 70) is GRANTED
ORDER RE: PENDING MOTIONS
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and the motion to amend (Dkt. 67) is STRICKEN from the docket. The Court, however, advises

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plaintiff that the content of and attachments to the motion to amend may nonetheless be

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considered in relation to any dispositive motions filed in this matter.

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(2)

Plaintiff filed a Motion to Give [him] Access to his Legal Records (Dkt. 72) and a

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Motion to Order [Washington State Penitentiary (WSP)] to Allow Plaintiff Access to Audio

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Recordings (Dkt. 73). In the first motion, plaintiff asks that the Court order WSP to allow him

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five hours to go through twenty-five boxes of legal materials, which would be brought to the

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prison by his Mother.

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contraband, but not to photocopy, read, or disclose the contents of the records to anyone. In the

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second motion, plaintiff states that WSP requires all audio recordings to be mailed from a court,

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and asks that this Court direct WSP to allow him to have audio recordings mailed to him by his

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Mother.

He also asks that WSP staff be allowed to search the records for

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These motions, like others before them (see Dkts. 62, 68 & 75), request that the Court

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order WSP to take action or accommodate plaintiff in some way. Because WSP is not a party to

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this matter, the Court lacks jurisdiction to direct WSP to act or accommodate plaintiff as he

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requests. Accordingly, plaintiff’s motions regarding access to his legal records (Dkt. 72) and

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audio recordings (Dkt. 73) are DENIED. The Court further directs plaintiff to abstain from

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filing similar motions in the future. Should he file any such motion, it will be stricken from

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the docket.

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(3)

Plaintiff filed a Motion to Extend Discovery (Dkt. 71) and Motion to Order

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Defendant Dennis to Answer Extra Interrogatories (Dkt. 80). He requests the extension in order

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to acquire the records in his Mother’s possession and to obtain an expert report, and, after

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unsuccessfully seeking a stipulation from Dennis, seeks answers to sixteen interrogatories above
ORDER RE: PENDING MOTIONS
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the amount allowed by the Federal Rules of Civil Procedure.

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Plaintiff has had ample time, including two extensions (see Dkts. 25 & 29), to obtain

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discovery from Dennis. He has had over two-and-a-half years, since September 2013 (see Dkt.

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44-9), to obtain documents from his Mother. However, with consideration of plaintiff’s pro se

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status and in the interest of ensuring he be provided a full and fair opportunity to obtain

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information, documents, and an expert report, the Court GRANTS in part and DENIES in part

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the motion for an extension (Dkt. 71) and motion for extra interrogatories (Dkt. 80). The

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discovery deadline is extended as to Dennis for the limited purpose of allowing a total of ten

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(10) additional interrogatories. Plaintiff is also afforded additional time to seek discovery from

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defendant Island County, and to continue his efforts to obtain documents from his Mother and an

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expert report.

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The discovery deadline is herein extended, within the parameters described above, to

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June 1, 2016, and the dispositive motion deadline is extended to July 1, 2016. Plaintiff is

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advised that no further extensions of the discovery or dispositive motion deadlines will be

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granted in this matter.

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(4)

Plaintiff’s Motion for Disclosure of Witnesses (Dkt. 79) is DENIED as premature.

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(5)

The docket also includes a Motion to Allow Plaintiff to Make an Amendment to

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his Second Amended Complaint and to Enter a Stay. (Dkt. 77.) He requests an amendment

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regarding and a stay on the Court’s consideration of his claim that Dennis’s confiscation of his

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legal materials violated his constitutional right of access to the courts. Plaintiff asserts that,

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because he maintains the “actual injury” he incurred was the loss of his criminal trial, this claim

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is barred and does not accrue until his criminal conviction is overturned. Heck v. Humphrey, 512

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U.S. 477, 479 (1994) (where a § 1983 action implies the invalidity of a criminal conviction or
ORDER RE: PENDING MOTIONS
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sentence, the action may not proceed unless plaintiff first succeeds in overturning the underlying

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conviction or sentence through direct appeal or a post-conviction type of proceeding). The

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remainder of plaintiff’s motion and proposed amendment addresses his desire that Dennis be

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required to pay for an attorney, investigator, or paralegal to bring the twenty-five boxes of legal

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materials to WSP, and that his Mother be paid for the time she has spent searching for

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documents.

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Pursuant to Heck v. Murphy, a civil rights complaint under § 1983 cannot proceed when

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“a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or

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sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that

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the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487 (emphasis

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added). Because plaintiff seeks only a stay on the Court’s consideration of this claim, rather than

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dismissal, his motion for an amendment and stay (Dkt. 77) is DENIED. Plaintiff may, however,

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submit a motion to dismiss his access to courts claim without prejudice to his future pursuit of

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such a claim following a successful invalidation of his conviction. See Trimble v. City of Santa

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Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam) (dismissal under Heck “required to be

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without prejudice so that Trimble may reassert his claims if he ever succeeds in invalidating his

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conviction.”)

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pursuant to Heck, in relation to summary judgment.

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(6)

The Court will otherwise address plaintiff’s access to courts claim, and any bar

The Court further finds it prudent to STRIKE the noting date of the pending

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Motion for Summary Judgment filed by Dennis (Dkt. 29) so that the motion may be considered

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following the completion of discovery and in conjunction with any additional dispositive

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motion(s) that may be filed. The Court will re-note the motion to coincide with either another

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dispositive motion or the dispositive motion deadline itself.
ORDER RE: PENDING MOTIONS
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(7)

The Clerk is directed to send a copy of this Order to the parties and to the

Honorable Ricardo S. Martinez.
DATED this 9th day of May, 2016.

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A

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Mary Alice Theiler
United States Magistrate Judge

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ORDER RE: PENDING MOTIONS
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