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James T. Case v. Board of Prison Terms

April 3, 2013

JAMES T. CASE, PLAINTIFF,
v.
BOARD OF PRISON TERMS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Allison Claire United States Magistrate Judge

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Plaintiff has consented to the jurisdiction of the magistrate judge. See ECF No. 9. By order filed on November 26, 2012 (ECF No. 29), plaintiff's second amended complaint (ECF No. 27) was dismissed with leave to file a third amended complaint within twenty-eight (28) days not to exceed thirty pages in length. See ECF No. 29, p. 7. In an order filed on January 8, 2013 (ECF No. 31), plaintiff was granted a twenty-eight day extension of time to file a third amended complaint in part due to plaintiff's complaint of difficulties accessing the prison law library. Plaintiff subsequently reported to the court that he was being denied access to the prison law library despite having a court ordered deadline. By order filed on February 11, 2013 (ECF No. 33), the undersigned directed Correctional Sergeant B. Tweedy to inform the court whether plaintiff had been provided any law library access, and, if not, why not. ECF No. 33. There are no defendants in this action to date; however, plaintiff identified C/O Tweedy as the prison official who allegedly refused plaintiff access to the law library. The court's order to Sgt. Tweedy issued pursuant to the All Writs Act, 28 U.S.C. § 1615(a).

Sgt. Tweedy's Response

Corr. Sgt. Tweedy filed his response (ECF No. 39) on March 11, 2013, following one extension of time.*fn1 On March 13, 2012, the clerk docketed a letter from petitioner dated March 11, 2013 (ECF No. 40), complaining of continued harassment. On March 27, 2013, plaintiff filed his reply to Sgt. Tweedy's amended response. ECF No. 41. In addition to responding to Sgt. Tweedy's statement, plaintiff requests an extension of time and requests appointment of counsel. Id.

In his response, Corr. Sgt. Tweedy provides general information regarding the process by which an inmate with an established court deadline may apply for priority legal user (PLU) status pursuant t 15 Cal. Code Regs. § 3122(b). PLU status confers access to the library ahead of inmates without pending court deadlines. He also informs the court that when there is a lockdown, inmates may be limited to use of a paging system to access library materials pursuant to 15 Cal. Code Regs. §§ 3122(b), 3123(c). Sgt. Tweedy provides documentation that plaintiff has previously obtained PLU status, and points out that he therefore is familiar with the process.

Sgt. Tweedy declares that in January 2013, plaintiff submitted an inmate request for interview (CDCR Form 22), saying he was not allowed law library access and that he had a court order requiring response. Sgt. Tweedy, a correctional sergeant on the yard, who states that he does not control law library access, checked with Senior Librarian Parsons as to whether plaintiff had priority library user (PLU) status. Librarian Parsons informed Sgt. Tweedy that plaintiff did not have PLU status at that time and there was not a record of a pending court case. The warden had placed the facility on lockdown which meant limited programs and inmate movement; however, PLU status would mean that plaintiff would nevertheless have law library access. Amended Response, Declaration of Corr. Sgt. B. Tweedy, signed under penalty of perjury on March 5, 2013 (ECF 39, p. 13 at ¶ 2).

When Sgt. Tweedy and Senior Librarian Parsons attempted to explain to plaintiff that he did not have current PLU status, plaintiff "became loud and belligerent." The sergeant said there was nothing he could do, and plaintiff was told to return to his cell. Tweedy Dec., ¶ 3. Sgt. Tweedy avers that he then responded to plaintiff's Form 22 request in writing, explaining that the library did not have any information regarding a court order and that it was plaintiff's responsibility to provide that information to the librarian to process. Sgt. Tweedy references 15 Cal. Code. Regs. § 3122 as the provision explaining the process by which inmates may request PLU status and the documentation to be submitted. Tweedy Dec. ¶ 4.

Sgt. Tweedy declares that he was not and still is not aware of any court deadlines for plaintiff. He states plaintiff did not provide him with court documents demonstrating he had a court deadline for the filing of legal paperwork and that had plaintiff done so, he (Sgt. Tweedy) would have told plaintiff to send the documents to the library with a Form 2171 so that plaintiff's eligibility for PLU status could be evaluated. Tweedy Dec. ¶ 5.

Sgt. Tweedy provides an exhibit that shows that plaintiff had requested and received PLU status from July 7, 2012 through July 26, 2012. ECF No. 39, pp. 2-3, Exhibits 1 & 2 at pp. 7 & 9, PLU request & PLU tracking sheet. The sign in report at Ex. 3 also shows plaintiff accessed the library several times in August and September of 2012. ECF No. 39, p. 11.

Sgt. Tweedy maintains that plaintiff has not shown that he hindered plaintiff's law library access by following the procedure for confirmation of whether plaintiff had PLU status and by telling him he was not on the PLU roster. Id. at 4.

Plaintiff's Reply

Plaintiff's letter to the court dated the same day as Sgt. Tweedy's amended response was filed states that his "harassment" by prison staff has continued. He claims that his cell was searched for two hours on February 2, 2013 and again on February 4, 2013. Plaintiff writes that following the "injunction" on Sgt. Tweedy (by which plaintiff likely means this court's order for a response from Sgt. Tweedy regarding plaintiff's law library access), plaintiff was put up for transfer on February 13, 2013. Plaintiff alleges that Sgt. Tweedy personally conducted a pat search of plaintiff as he came out of chow hall. On March 11, 2013, plaintiff was told that he would be moving to another cell. Plaintiff identifies this an instance of "ping pong balling," a form of "harassment" in which an inmate is moved from cell to cell. He also claims that his request for envelopes as an indigent was refused and that he had to stand in front of R&R for five days to get a package. He asks for appointment of counsel to help him circumvent the alleged obstacles. As a post-script, he asserts that he has still not gained law library access. ECF No. 40.

In his reply to Sgt. Tweedy's response to this court's order, plaintiff points out that no sign-in sheet for library use was provided for the period beginning January 8, 2013. He contends that this is because he has not been allowed law library access since that date. Plaintiff asks the court to order, inter alia, "videotapes" for January 18, 2013, which would prove (1) that plaintiff tried to hand Sgt. Tweedy a brown envelope presumably containing documentation of his court deadlines and (2) that he never had an outburst on the day he was talking with Sgt. Tweedy. Plaintiff requests yet another extension of time due to the "on going harassment." He also states ...


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