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Jesse Stephen King v. Mike Mcdonald

April 30, 2013

JESSE STEPHEN KING, PLAINTIFF,
v.
MIKE MCDONALD, ET AL.,
DEFENDANTS.



ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff claims that defendants Bigford and Carter have violated his rights to due process and to access the courts by destroying his legal materials while plaintiff was facing a court filing deadline. This matter is now before the court on defendants' October 8, 2012 motion for summary judgment, and on several motions filed by plaintiff, including a September 14, 2012 motion for injunctive relief (ECF No. 66), a motion to amend the complaint filed January 14, 2013 (ECF No. 77) and a motion for summary judgment also filed January 14, 2013 (ECF No. 78).

In addition, on April 17, 2013, plaintiff filed a motion for reconsideration of the court's June 7, 2012 order disregarding a first amended complaint filed by him on April 30, 2012. (ECF No. 82.) Finally, on April 18, 2013, plaintiff filed a motion for court-ordered copies. (ECF No. 83).

I. Plaintiffs' Motions

On July 28, 2011, this court issued a scheduling order in this action. (ECF No. 33.)

In relevant part, that order set a deadline of February 3, 2012 for filing dispositive motions. (See Discovery and Scheduling Order filed July 28, 2011 (ECF No. 33) at 6.) On February 3, 2012, defendants timely filed a motion for summary judgment (ECF No. 41). Thereafter, plaintiff sought and received two thirty-day extensions of time to file an opposition to defendants' motion. (See Orders filed Mar. 13, 2012 (ECF No. 45) and Apr. 4, 2012 (ECF No. 48).)

On April 30, 2012, plaintiff filed a first amended complaint. (ECF No. 49.) In an order filed June 7, 2012 (ECF No. 52), the court found that plaintiff had not sought leave of court to amend his complaint and that the time for the filing of pretrial motions had already closed. (See Order filed June 7, 2012 (ECF No. 52) at 2.) The court therefore ordered the first amended complaint disregarded. (Id. at 3.) As noted above, on April 17, 2013, plaintiff filed a motion for reconsideration of that order. Plaintiff has not shown a basis for relief from his delay in seeking leave to amend his complaint. His motion for reconsideration will therefore be denied.

In the June 7, 2012 order, the court also granted plaintiff one final period of thirty days in which to file an opposition to defendants' initial motion for summary judgment. Id. Plaintiff did not timely file an opposition to that motion. For that reason, on July 31, 2012, the court issued findings and recommendations recommending dismissal of this action pursuant to Fed. R. Civ. P. 41(b). (ECF No. 53.) On August 15, 2012, plaintiff filed a motion for a ninety day extension of time to file an opposition to defendants' motion for summary judgment. (ECF No. 54.) By order filed August 22, 2012, the court vacated the July 31, 2012 findings and recommendations, denied defendants' February 3, 2012 motion for summary judgment without prejudice to its renewal within forty-five days, and set a briefing schedule with respect to any such renewed motion. Order filed August 22, 2012 (ECF No. 58). Defendants renewed their motion for summary judgment on October 8, 2012.

On November 15, 2012, plaintiff timely filed an opposition to defendants' motion for summary judgment. (ECF No. 74.) Thereafter, almost two months later, on January 14, 2013, plaintiff filed a motion for summary judgment and a motion to amend his complaint. (ECF Nos. 77 and 78.) However, these motions by plaintiff were filed almost a year after the deadline set by the court for the filing of dispositive motions in this action. Moreover, any cross-motion for summary judgment was due, if at all, with plaintiff's opposition to defendants' motion for summary judgment. See L.R. 230(e). Plaintiff's motions for summary judgment and for leave to amend are untimely and should therefore be denied.

As noted above, plaintiff has also filed a motion for injunctive relief (ECF No. 66). Therein, plaintiff seeks an order preventing defendants from "maliciously destroying" or confiscating his personal property. (Order to Show Cause for An [sic] Preliminary Injunction and a Temporary Restraining Order, filed Sept. 14, 2012 (ECF No. 66) at 2.) Plaintiff's motion arises from events that post-date the alleged events that gave rise to the claims set forth in his complaint, and includes allegations against individuals who are not named as defendants in this action.

The principal purpose of preliminary injunctive relief is to preserve the court's power to render a meaningful decision after a trial on the merits. See C. Wright & A. Miller, 11 Federal Practice and Procedure, §2947 (1973). In addition to demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary injunction, plaintiff must show a "fair chance of success on the merits" of his claim. Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982) (quoting Benda v. Grand Lodge of International Association of Machinists and Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1979)). Implicit in this required showing is that the relief awarded is only temporary and there will be a full hearing on the merits of the claims raised in the injunction when the action is brought to trial.

In addition, as a general rule this court is unable to issue an order against individuals who are not parties to a suit pending before it. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100 (1969).

Therefore, because plaintiff's motion for injunctive relief involves events not at issue in this lawsuit and individuals who are not defendants herein, the motion should be denied..

Finally, on April 18, 2013, plaintiff filed a document styled "Order for Help to Get Copies Made." (ECF No. 83.) The court construes this submission as a motion for injunctive relief. As with plaintiff's September 14, 2012 motion, his April 18, 2013 motion is based on events unrelated to the underlying claims in this action and upon allegations against individuals who are not named as defendants herein. Plaintiff has made no showing that any alleged inability on his part to obtain copies is interfering with his ability to prosecute this action. Accordingly, this motion should be denied.

II. Defendants' Motion for Summary Judgment*fn1

This action is proceeding on plaintiff's claims that defendants Carter and Bigford

violated his constitutional rights to access the courts and to due process by confiscating his property. Defendants Carter and Bigford seek summary judgment on the grounds that: (1) there is no evidence that they interfered with plaintiff's right to access the courts; (2) any claim of interference with court access necessarily implies the validity of plaintiff's criminal conviction and sentence; and (3) plaintiff cannot state a claim for violation of his right to due process because the ...


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