-EFB (PC) Houston v. Knowles, et al, No. 2:2009cv00178 - Document 67 (E.D. Cal. 2011)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/2/11 ORDERING that Plaintiffs 31 Request for Securing of Vital Documents in Defendants Control is construed as a motion for a protective order and, so construe d, is DENIED; No later than 14 days, counsel for defendants shall inquire as to the status of plaintiffs access to his legal materials, and within 21 days thereafter, defendants shall file an opposition, or other appropriate response, to plaintiffs r equest for a protective order directing defendant Dickinson to provide plaintiff with his legal materials. It is RECOMMENDED that Plaintiffs 54 motion for a temporary restraining order to the extent it seeks an order directing his release from Adm inistrative Segregation or otherwise nullifying discipline that is unrelated to the claims raised in the complaint, be denied; Plaintiffs 56 motion to vacate the order of January 19, 2011 be denied; Plaintiffs 42 , 43 , 44 , 45 , 46 and 47 motions for entry of default judgment against defendants be denied. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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-EFB (PC) Houston v. Knowles, et al Doc. 67 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 KELVIN HOUSTON, 11 12 13 14 15 16 Plaintiff, No. CIV S-09-0178 GEB EFB P vs. MIKE KNOWLES, et al., ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. / Plaintiff is a prisoner without counsel and proceeding in forma pauperis with a civil 17 rights action brought under 42 U.S.C. § 1983. Currently before the court are numerous motions 18 filed by plaintiff: (1) a “Request for Securing of Vital Documents in Defendants’ Control” 19 (Docket No. 31); (2) motions for entry of default judgment against all six defendants (Docket 20 Nos. 42-47); (3) a motion for a temporary restraining order (Docket No. 54); (4) a motion to 21 vacate the court’s order granting certain defendants an extension of time to respond to the 22 complaint (Docket No. 56); and (5) a motion for court intervention (Docket No. 60). Several of 23 plaintiff’s motions seek a provisional remedy of some sort (Docket Nos. 31, 54, and 60) and thus 24 will be addressed together. Plaintiff’s motion to vacate is similarly related to his requests for 25 entry of default judgment, and thus those motions (Docket Nos. 42-47 and 56) will also be 26 addressed together. For the reasons provided below, the court denies plaintiff’s “Request for 1 Dockets.Justia.com 1 Securing of Vital Documents in Defendants’ Control.” The undersigned recommends the denial 2 of plaintiff’s motions for entry of default judgment, to vacate the order granting defendants an 3 extension of time, and for a temporary restraining order. However, the court will require 4 defendants to respond to plaintiff’s contention that he has been separated from his necessary 5 legal materials. 6 I. 7 Motions for Provisional Relief On September 29, 2010, plaintiff filed a “Request for Securing of Vital Documents in 8 Defendants’ Control.” Dckt. No. 31. Plaintiff contends that, as alleged in his complaint, 9 defendants have, in the past, tampered with documents to cause him loss and “disguise their 10 fraudulent statements against plaintiff.” Id. at 2. Thus, plaintiff states, there is “no reason to 11 believe” that defendants will not alter documents vital to his case. Id. Plaintiff asks the court to 12 confiscate certain listed documents to prevent such spoliation. Id. 13 As plaintiff’s motion does not seek intermediate relief of the same character as that which 14 may be granted finally, but instead concerns procedures to be used in the litigation of this case, 15 the court construes the motion as one for a protective order rather than one for preliminary 16 injunctive relief. See Kaimowitz v. Orlando, Fla., 122 F.3d 41, 43 (11th Cir. 1997) (stating that 17 preliminary injunctive relief is not appropriate for matters outside the lawsuit’s issues); DeVose 18 v. Harrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam) (same). Such a motion is within the 19 jurisdiction of the undersigned. Chan v. County of Sacramento, No. CIV S-09-2006 MCE GGH 20 P, 2010 U.S. Dist. LEXIS 88706, *2-6 (E.D. Cal. Aug. 27, 2010). 21 Plaintiff’s bare allegation that defendants have altered documents does not provide a 22 sufficient basis for the court to issue a protective order. Contrary to plaintiff’s assertions, the 23 court has some reason to believe that defendants will not alter discoverable documents, as all 24 parties to this case are under an obligation to preserve evidence they know or should know is 25 relevant to the case or could lead to the discovery of relevant evidence. A. Farber & Partners, 26 Inc. v. Garber, 234 F.R.D. 186, 193 (C.D. Cal. 2006). If, after discovery has commenced, 2 1 plaintiff believes that defendants have altered or destroyed discoverable information, plaintiff 2 may seek sanctions against defendants, including an adverse inference that the tampered 3 information was adverse to defendants. Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc,, 4 682 F.2d 802, 806 (9th Cir. 1982); In re Napster, Inc. Copyright Litig., 462 F. Supp.2d 1060, 5 1078 (N.D. Cal. 2006); Nat’l Ass’n of Radiation Survivors v. Turnage, 115 F.R.D. 543, 557 6 (N.D. Cal. 1987). Accordingly, plaintiff’s request that the court confiscate certain documents 7 from defendant, construed as a motion for a protective order, will be denied. 8 Plaintiff has also filed a “Request for Temporary Restraining Order” (Docket No. 54), in 9 which he alleges that prison staff filed a false disciplinary charge for bringing marijuana into the 10 prison against him in January 2011 in order to have him placed in Administrative Segregation 11 and thereby separated from the legal materials he needs to litigate this and other cases. He 12 argues that the evidence does not support the disciplinary charge and asks the court to order 13 prison authorities to release him from Administrative Segregation and provide him with his legal 14 materials. 15 Again, plaintiff seeks provisional relief on claims that are not included in the complaint 16 and are unrelated to the claims raised in his complaint. See Dckt. No. 28, Am. Compl. (raising 17 claims arising from allegedly false disciplinary charges for sexual battery and other alleged 18 constitutional violations occurring in 2008). This case was initiated long before the January 19 2011 discipline plaintiff challenges in his request for a temporary restraining order, and because 20 that disciplinary action is not part of this case, plaintiff may not obtain an injunction nullifying 21 all or part of it, including plaintiff’s consequent placement in Administrative Segregation. If 22 plaintiff wishes to challenge the January 2011 discipline, he must file a new case to do so. 23 Accordingly, plaintiff’s motion for a temporary restraining order, to the extent he seeks an order 24 directing his release from Administrative Segregation or otherwise nullifying discipline that is 25 unrelated to the claims raised in the complaint, should be denied. 26 //// 3 1 To the extent plaintiff alleges that he has been separated from the legal materials he 2 needs to prosecute this action, the court construes the motion as one for a protective order. 3 Plaintiff similarly argues in his “Request for Court Intervention” (Docket No. 60), that he has 4 been separated from necessary legal materials and thus cannot respond to the motion to dismiss 5 filed by defendants. Together, the court construes these allegations as a request for a protective 6 order directing defendant Dickinson, Warden of CMF-Vacaville, to provide plaintiff with his 7 legal materials. 8 9 Defendants have not responded to plaintiff’s claims that he cannot access his legal materials. Accordingly, the court will order counsel for defendants to inquire as to the status of 10 plaintiff’s access to his legal materials and, thereafter, to respond to plaintiff’s requests for a 11 protective order. If plaintiff is unable to timely file an opposition to defendants’ motion to 12 dismiss due to lack of access to his legal materials, plaintiff may seek an extension of time. 13 II. 14 Motions for Default Judgment Plaintiff seeks entry of default judgment against all six defendants in this action. Dckt. 15 Nos. 42-47. Plaintiff also asks the court to vacate its order of January19, 2011 (Docket No. 51), 16 granting defendants Dickinson, Mitchell, and Shankland an extension of time to respond to the 17 complaint, to consider those defendants’ response untimely, and to enter default judgment 18 against them. Dckt. No. 56. 19 Plaintiff takes issue with the court’s granting of an extension of time without allowing 20 sufficient time for plaintiff to file an opposition to the request. Local Rule 6-144(c) of this court 21 provides that the court has discretion to grant, ex parte, an initial extension of time to a party 22 upon an affidavit submitted by counsel stating that a stipulation to an extension of time cannot 23 reasonably be obtained, why such a stipulation may not be obtained, and why the extension of 24 time is necessary. The request for an extension filed by defendants Dickinson, Mitchell, and 25 Shankland was the first such request in this case and thus, the court had discretion to grant the 26 request without response from plaintiff under Local Rule 6-144(c). Counsel for defendants 4 1 submitted the required affidavit, declaring that plaintiff’s incarceration made it difficult to obtain 2 a stipulation and providing the reasons for seeking the extension of time. Accordingly, 3 plaintiff’s motion to vacate the order of January 19, 2011 should be denied. 4 As the court acted within its discretion in granting defendants Dickinson, Mitchell, and 5 Shankland an extension of time to respond to the complaint, and as those defendants filed a 6 motion to dismiss within the time provided by the court, plaintiff’s motions for entry of default 7 judgment against those defendants should be denied. Further, as the docket in this action does 8 not reveal that defendants Olson and Riley have been served with the complaint, entry of default 9 judgment against those defendants at this time is improper and should be denied. See Mason v. 10 Genisco Tech. Corp., 960 F.2d 849, 851 (9th Cir. 1992) (holding that a default judgment against 11 a party is void where the party has not been served with process). 12 The remaining defendant, Knowles, was mailed a waiver of service form by the U.S. 13 Marshal on December 14, 2010, giving him 60 days from that date to respond to the complaint. 14 Dckt. No. 57; Fed. R. Civ. P. 4(d). Defendant Knowles timely filed a response on February 14, 15 2011. Dckt. No. 62 (defendant Knowles’s joinder in the motion to dismiss filed by defendants 16 Shankland, Mitchell, and Dickinson). Accordingly, defendant Knowles has not failed to plead or 17 otherwise defend and entry of default judgment against him is not called for. Fed. R. Civ. P. 18 55(a). 19 III. Order and Findings and Recommendations 20 Accordingly, it is hereby ORDERED that: 21 1. Plaintiff’s September 29, 2010 “Request for Securing of Vital Documents in 22 Defendants’ Control” (Docket No. 31) is construed as a motion for a protective order and, so 23 construed, is denied. 24 2. No later than fourteen days from the date of this order, counsel for defendants shall 25 inquire as to the status of plaintiff’s access to his legal materials, and within twenty-one days 26 thereafter, defendants shall file an opposition, or other appropriate response, to plaintiff’s request 5 1 for a protective order directing defendant Dickinson to provide plaintiff with his legal materials. 2 Further, it is hereby RECOMMENDED that: 3 1. Plaintiff’s January 27, 2011 motion for a temporary restraining order (Docket No. 54), 4 to the extent it seeks an order directing his release from Administrative Segregation or otherwise 5 nullifying discipline that is unrelated to the claims raised in the complaint, be denied. 6 2. Plaintiff’s motion to vacate the order of January 19, 2011 (Docket No. 56) be denied. 7 3. Plaintiff’s motions for entry of default judgment against defendants (Docket Nos. 42- 8 47) be denied. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 14 within the specified time may waive the right to appeal the District Court’s order. Turner v. 15 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 16 Dated: March 2, 2011. 17 18 19 20 21 22 23 24 25 26 6
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