ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action filed pursuant to 42 U.S.C. § 1983. Plaintiff is currently incarcerated at California Medical Facility ("CMF") in Vacaville, California, where the alleged violations of plaintiff's rights took place. This order addresses defendants' motions to dismiss the complaint, as well as various motions filed by plaintiff regarding writing-related accommodations.
This action proceeds against defendants Dhillon,
On March 30, 2015, defendants Clark, Ditomas, and Rading filed a motion to dismiss plaintiff's first amended complaint. ECF No. 47. On April 23, 2015, plaintiff filed a document stating that he opposed defendants' motion, and requesting access to a typewriter. ECF No. 50. Between April 18, 2015 and May 11, 2015, plaintiff filed three additional requests for a typewriter or assistance with writing.
On May 11, 2015, defendant Dhillon filed a motion to dismiss.
On June 16, 2015, the court issued an order directing the Deputy Attorney General to file a statement explaining what accommodations are available to accommodate plaintiff's disability. ECF No. 59. Prior to receiving the court's June 16, 2015 order, plaintiff filed several additional requests for accommodations.
On June 25, 2015, plaintiff filed a motion for reconsideration of the court's June 16, 2015 order, ECF No. 63, followed by another motion for assistance, ECF No. 65.
On July 1, 2015, the district judge denied plaintiff's motion for reconsideration. ECF No. 66. On July 10, 2015, plaintiff filed a "status report." ECF No. 68.
On July 17, 2015, the Deputy Attorney General filed a Statement of Available Accommodations indicating that plaintiff has access to writing-related accommodations but has not taken advantage of them in that he has not asked for assistance. ECF No. 67 at 3.
On July 20, 2015, plaintiff filed a response to the order denying plaintiff's motion for reconsideration. ECF No. 69. On August 20, 2015, plaintiff filed a motion for an extension of time to file another response to the order denying his motion for reconsideration. ECF No. 70. Plaintiff thereafter continued to file notices, letters, supplements, and requests concerning his desire for law library accommodations and medical treatment.
At the outset, plaintiff is warned that if he continues to inundate the court with repetitive and piecemeal filings, they will be disregarded due to the excessive burden they place upon the court. Given this court's caseload and the volume of documents filed by plaintiff, it is almost impossible to respond to all of plaintiff's filings. However, the court will attempt to address the most serious and clearly stated issues.
In response to the court's June 16, 2015 order, the Deputy Attorney General filed a Statement of Available Accommodations indicating that the following accommodations are available at the CMF Law Library for inmates with writing-related disabilities:
ECF No. 67 at 2-3.
In support of the Statement of Available Accommodations, the Deputy Attorney General submitted the declaration of Y. Cheng, Senior Prison Law Librarian at California Medical Facility. ECF No. 67-1. In his declaration, Cheng explains that the library is open seven days a week to accommodate prisoners who work full time; that prisoners who need additional time with library typewriters or other accommodations due to a writing-related disability can request the librarian's assistance without providing any documentation of disability; and that when a prisoner requests additional library time, the librarian will either allow the prisoner to remain in the library or will provide the prisoner with a library pass to return on a different day or time when the library can accommodate him.
The Deputy Attorney General explained that although plaintiff has access to writing-related accommodations, plaintiff has "not taken advantage of these accommodations because he has not asked for assistance." ECF No. 67 at 3. According to Cheng's declaration, between August 17, 2012 and June 25, 2015, plaintiff did not request any assistance from library clerks or any writing-related accommodations, and did not request PLU status. ECF No. 67-1 at 3. Cheng further indicated that in June 2015, plaintiff received additional library time after requesting it from a librarian on staff.
Plaintiff has filed a litany of motions, notices, and requests essentially arguing that the accommodations described in Cheng's declaration are not truly available to plaintiff or do not sufficiently accommodate plaintiff's disability.
At the outset, the court notes that the sheer volume of plaintiff's filings undermines plaintiff's assertion that he has not been able to obtain writing-related assistance in the law library, as the majority of plaintiff's recent filings have been typed (apparently with the assistance of other inmates). In the last two months alone, plaintiff has filed seven letters or notices to the court, all of which have been typed. Given the recent volume of typed filings submitted by plaintiff, it appears that plaintiff's issues with general typewriter access have been resolved. Accordingly, to the extent plaintiff requests a court order granting him general access to a typewriter, the request is denied as moot.
However, plaintiff's allegations suggest that in addition to typewriter access, plaintiff requires assistance conducting research on the E-law library. Specifically, it appears that plaintiff is not able to take notes while conducting research using the E-law library because the typewriters are not located near the E-law library, and plaintiff cannot take notes by hand. Plaintiff's issue with the E-law library appears to be further complicated by the fact that plaintiff is in a wheelchair, which apparently affects which part of the library plaintiff is allowed to sit in.
The Statement of Accommodations filed by defendants suggests that the law library at CMF is equipped to accommodate plaintiff's disability. Specifically, it appears that plaintiff can request that the librarian assign a clerk to assist plaintiff with "legal research questions" and "technical problems." ECF No. 67 at 3. Presumably, this clerk would be able to assist plaintiff with using the E-law library and with taking notes. Defendants' Statement also indicates that a library clerk could handwrite documents dictated by plaintiff,
It is not clear to the court whether plaintiff has specifically requested that the librarian assign a clerk to assist plaintiff in the law library. Librarian Cheng states in his declaration that his search of the Library Assistance Log indicated that plaintiff did not request assistance from library clerks or other writing-related accommodations between August 17, 2012 and June 25, 2015. However, the court's own record suggests that plaintiff requested assistance on at least one occasion (though perhaps not through formal channels), as plaintiff's motion for appointment of counsel was prepared by CDCR employee LTA McAtee in January 2015, apparently to accommodate plaintiff's disability.
Plaintiff also states he asked librarian Cheng for assistance and was told to come back in four days. ECF No. 76 at 2. However, it is unclear whether plaintiff returned four days later to receive assistance. In another document filed in October 2015, plaintiff states that he asked the Senior Law Librarian "for assistance (per Declaration by Y. Cheng 8th July 2015)," but did not receive assistance. ECF No. 79 at 2. Plaintiff goes on to state that no accommodations are being provided while using the E-Law Library.
It is not entirely clear whether plaintiff has followed the proper channels for requesting assistance in the law library, or that plaintiff returned to receive assistance when instructed to do so by the law librarian. However, in an abundance of caution, the court will require defendants to address plaintiff's specific assertion that he is not being provided with assistance using the E-law library and taking notes on his research. Accordingly, the Deputy Attorney General is directed to file a statement with the court within ten (10) days indicating whether a library clerk would be able to assist an inmate such as plaintiff, who is in a wheelchair, with physically using the E-law library, taking notes, and handwriting a document dictated by the inmate. The statement should clearly spell out the procedures for requesting this type of assistance. If the procedure is to fill out a form requesting assistance, the statement should indicate how an inmate who has trouble using his hands should request assistance if he is unable to fill out the form.
On August 20, 2015, plaintiff requested an extension of time to respond to the July 2, 2015 order denying plaintiff's motion for reconsideration.
Defendant Clark, Ditomas, and Rading's motion to dismiss and defendant Dhillon's separate motion to dismiss are currently pending before the court. ECF Nos. 47, 53. In their motions, defendants move to dismiss the first amended complaint for failure to state a claim upon which relief can be granted.
In the first amended complaint, plaintiff alleges that defendants were deliberately indifferent to his serious medical needs, and indicates that he has administrative grievances, sick call requests, and "other medical paperwork" relevant to his allegations that are not attached to the complaint.
Accordingly, the court will direct plaintiff to compile the documents referenced in his first amended complaint that he believes support his allegations against defendants Clark, Ditomas, Rading, and Dhillon. Plaintiff shall submit these documents to the court as a single filing. Plaintiff should label the filing "Exhibits to the First Amended Complaint." Plaintiff shall submit these documents only once.
Defendants' motions to dismiss are vacated without prejudice to their renewal once plaintiff files the above exhibits. Once defendants re-file their motions to dismiss, plaintiff shall file a revised opposition to each motion.
After the Deputy Attorney General files an updated statement of accommodations, plaintiff may file
After defendant Clark, Ditomas, and Rading re-file their motion to dismiss, plaintiff must file an opposition to defendant Clark, Ditomas, and Rading's motion to dismiss. If plaintiff needs an extension of time to file his opposition, plaintiff may file a request for additional time. The request for additional time should be no more than one page.
After defendant Dhillon re-files his motion to dismiss, plaintiff must file an opposition to defendant Dhillon's motion to dismiss. If plaintiff needs an extension of time to file his opposition, plaintiff may file a request for additional time. The request for additional time should be no more than one page.
At this time, plaintiff may not file any additional documents other than those listed above.
Finally, plaintiff is advised that the court has received plaintiff's motion for injunctive relief regarding the incident that allegedly occurred during plaintiff's physical therapy session on November 23, 2015. The court will address this issue in a separate order. Plaintiff must not file any additional updates, letters, or other documents regarding this incident unless directed to do so by the court. Any additional filings not authorized by the court will be disregarded.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Plaintiff's requests for accommodations (57, 58, 65, 71, 76, 77, 80) are granted in part and denied in part. Plaintiff's request for a court order granting access to a typewriter is denied without prejudice. Plaintiff's request for assistance using the E-law library is granted to the extent that the Deputy Attorney General is directed to file within ten (10) days from the filing date of this order an updated statement of accommodations, as set forth above;
2. Plaintiff's request to speak with the court by phone (ECF No. 62) is denied;
3. Plaintiff's motion for an extension of time (ECF No. 70) is denied;
4. Within thirty days from the filing date of this order, plaintiff shall file the documents referenced in his first amended complaint that support his allegations against defendants Dhillon, Clark, Ditomas, and Rading. Plaintiff shall file these documents as a single exhibit labeled "Exhibits to the First Amended Complaint." Plaintiff shall submit these documents only once.
5. Defendant Clark, Rading, and Ditomas' motion to dismiss (ECF No. 47) and defendant Dhillon's motion to dismiss (ECF No. 53) are vacated without prejudice to renewal once plaintiff files the above exhibits;
6. Upon re-notice of the motions to dismiss, plaintiff shall have 30 days to oppose each motion. Plaintiff must file a separate opposition to each motion, meaning that he should file one opposition to defendant Rading, Clark, and Ditomas' motion to dismiss, and another opposition to defendant Dhillon's motion to dismiss. Following the filing of plaintiff's respective oppositions, defendants shall have seven days to file a revised reply.
