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West v. Dizon

United States District Court, Ninth Circuit

January 27, 2014

MACK WEST, Jr., Plaintiff,
v.
NOEL DIZON, Defendant.

ORDER

DALE A. DROZD, District Judge.

Plaintiff is a state prisoner proceeding pro se with an action for alleged violations of his civil rights, pursuant to 42 U.S.C. ยง 1983. He is currently housed at Salinas Valley State Prison (SVSP). On December 26, 2013, plaintiff filed a motion for reconsideration, wherein he claimed that the warden at the California Medical Facility (CMF), where he was assigned at the time of the alleged civil rights violations, has failed to grant him approval to correspond with inmates incarcerated there after plaintiff was transferred out of CMF.[1] Plaintiff states the inmates he wants to contact are witnesses to the alleged civil rights violations and argues he needs their sworn statements about the underlying incidents to oppose the defendant's pending motion for summary judgment. (See Motion for Reconsideration (Doc. No. 65) at 3-4.)

On January 9, 2014, the court ordered defendant to respond to plaintiff's motion for reconsideration only with respect to the issue of whether the court should order officials at CMF to allow plaintiff's requested correspondence with inmates held at that institution.[2] Defendant complied and has responded that there is no evidence indicating plaintiff ever properly submitted a request to his correctional counselor at SVSP, as required by state regulations controlling correspondence between inmates of the California prison system.[3] (See Opposition (Doc. No. 67) at 4-5.) Defendant presents a sworn declaration of V. Hogg, plaintiff's correctional counselor at SVSP, who states under penalty of perjury that he recalls plaintiff having submitted just one request for correspondence with other inmates in 2013.[4] (Doc. No. 67-1.) However, those inmates are witnesses in another case. (Id.) According to Hogg, plaintiff submitted that request on the incorrect form. (Id.) Hogg provided plaintiff with the proper form, but plaintiff never returned it. (Id.) Hogg has no recollection of any other request from plaintiff to correspond with other inmates. (Id.)

As the court wrote in its previous order, the burden is on plaintiff to demonstrate that the balance of equities tips in favor of this court enjoining a non-party prison official to take steps that assure plaintiff is able to present his claims fairly. See Stormans, Inc. v. Selecky , 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res. Def. Council, Inc. , 555 U.S. 7, 22 (2008) (internal quotations omitted)); see also Bounds v. Smith , 430 U.S. 817, 823 (1977) (citation omitted). Defendant's evidence refutes plaintiff's contentions that he has used the proper procedure to request access to inmates who might be able to provide testimony in support his claim and that he was denied access for no legitimate penological purpose. See Turner v. Safley , 482 U.S. 78, 89-91 (1987) (discussing the balance courts must strike between prisoners' constitutional right to send and receive mail and the states' interest in maintaining prison safety and security). There is no cause, therefore, for granting plaintiff's motion for reconsideration.

There is also no cause for further delay in resolving the pending motion for summary judgment. The briefing schedule for that motion will be as follows:

1. Plaintiff shall file an opposition with supporting memorandum of points and authorities no later than February 21, 2014.
2. Defendant shall file a reply, if any, no later than February 28, 2014.

The court will not grant any further extensions of this schedule without a showing of extraordinary cause by the party seeking the extension.

Accordingly, IT IS ORDERED that:

1. The remainder of the motion for reconsideration (See Doc. Nos. 66, 67) is denied.

2. Plaintiff shall file an opposition to the motion for summary judgment no later than February 21, 2014.

3. Defendant shall file a reply, if any, no later than February 28, 2014.


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