United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants move to dismiss pursuant to Rule 12 (b)(6), Federal Rules of Civil Procedure ("Fed. R. Civ. P.") for failure to state a claim. ECF No. 12. Plaintiff has filed a motion requesting the court's assistance in obtaining certain documents from prison staff. ECF No. 17. As discussed below, the motion for court assistance is denied and it is recommended that the motion to dismiss be granted.
This action proceeds on the complaint filed August 1, 2013. ECF No. 1. On October 16, 2013, this court concluded that plaintiff had stated cognizable claims against defendants Hill and Lattuga. ECF No. 5. Plaintiff claims that these defendants violated his First Amendment right of access to the courts in 2010-2011. Plaintiff alleges as follows:
On September 15, 2010, plaintiff was transferred from Folsom State Prison ("FSP") to the Sacramento County Main Jail ("SCMJ") for a court proceeding. ECF No. 1 at 8. Prison staff provided plaintiff only 10 minutes' notice of the transfer for security reasons. Id. Plaintiff was allowed to take with him certain legal materials, including enough postage to contact each court in which he had a pending action to inform them of his change of address. Id. One such court in which plaintiff was then proceeding was the U.S. Court of Appeals for the Ninth Circuit, where plaintiff sought reversal of the denial of his federal petition for writ of habeas corpus. Id.
On plaintiff's arrival, SCMJ staff placed his property-including his legal materials-in a storage room. Id. Plaintiff filed 10 requests for his property or for access to the law library between September 16, 2010 and October 8, 2010, but he never got his property or library access. Id. Plaintiff remained at SCMJ until October 12, 2010. Id. at 9.
In the meantime, the Ninth Circuit rejected plaintiff's appeal and sent its ruling to the address on file for plaintiff (at FSP) on September 30, 2010. Id. Under FSP's mail policy, enforced by defendant Warden Rick Hill, the mail was returned to the appellate court with the stamp "OTC" (out to court) after being held for seven days. Id. at 7, 9.
When plaintiff arrived back at FSP, he immediately requested his mail. Id. at 9. Defendant Lattuga responded on October 14, 2010:
The mailroom holds mail for 7 days, then we return to sender with the notation out to court or out to medical. By returning legal mail it stops the clock for date of response, etc. Sometimes inmates are out to court or out to medical for several months, so we abide by Title 15 and the DOM and RTS after 7 days.
Id. Plaintiff then submitted a request to receive his legal property, stating that his legal mail had been returned and he had no way of knowing which courts had contacted him. Id. at 10. Plaintiff stated that he needed to get his legal property right away to contact the courts and find out what had been sent while he was at SCMJ. Id. Nevertheless, plaintiff's property was not returned to him until November 22, 2010. Id.
The following day, plaintiff sent a letter to the Ninth Circuit to "make sure that my case was still pending and that there was no undelivered mail." Id. Plaintiff asked the court to forward any returned mail to him. Id. Plaintiff received no response to the letter, but did receive the court's December 6th mandate on December 9, 2010. Id. That document informed, "The judgment of this court, entered September 30, 2010, takes effect this date." Id. It was plaintiff's first notice that the court had decided his appeal, but it did not state the substance of the decision. Id. at 11.
On December 13, 2010, plaintiff filed a "Request for Court Ruling Dated September 30, 2010 and Motion to Vacate Judgment Entered on December 6, 2010." Id. The motion stated that plaintiff had not received the September 30, 2010 ruling because it had been returned to sender while he was out to court. Id. Plaintiff informed the appellate court that he had written earlier to request any mail that had been returned. Id. Plaintiff requested a copy of the ruling and asked the court to "vacate the judgment entered on December 6, 2010, " but provided no rationale why the judgment should be vacated. Id. at 11-12. The motion concluded, "Petitioner may need to appeal or file something based on the September 30, 2010 ruling, and petitioner requests that the courts afford petitioner that right." Id. at 12.
Plaintiff received a copy of the September 30th ruling on December 23, 2010, but received no response to his request that the mandate be vacated. Id. The next day, he sought to file a "Motion for Extension of Time to File Petition of Certiorari" in the U.S. Supreme Court, affixing five indigent envelopes to the motion as required by prison regulations to cover postage. Id. On December 30, 2010, plaintiff learned that defendant Lattuga had refused to accept the envelopes as postage and had not mailed the motion. Id.
That same day, plaintiff successfully filed the motion for extension with the U.S. Supreme Court, "based on the fact that plaintiff received the Ninth Circuit Court of Appeals' September 30, 2010 ruling December 23, 2010, defendant Valerie Lattuga's legal advice, and that he was awaiting a ruling on his motion to vacate to restore his appeal time limits." Id. The motion was ...