Pinson v. Othon ( 2020 )

1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Jeremy Pinson, No. CV-20-00169-TUC-RM 11 Plaintiff, ORDER 12 v. 13 Unknown Othon, et al., 14 Defendants. 15 16 Pending before the Court is Plaintiff’s Motion for Sanctions, Protective Order, and 17 Motion to Compel. (Doc. 37.) Defendant United States responded to the Motion on 18 behalf of the Defendants who have not yet appeared (Doc. 43) and Plaintiff replied (Doc. 19 45). Also pending is Plaintiff’s Motion for Hearing (Doc. 46) and Defendants’ Motion to 20 Strike Doc. 46 (Doc. 47). 21 I. Motion for Sanctions (Doc. 37) 22 A. Arguments 23 In her1 Motion for Sanctions, Plaintiff alleges that on August 5, 2020, Defendants 24 Dukett, Estrella, and von Blanckensee searched her cell and seized “irreplaceable” 25 evidence, attorney correspondence, and a draft Amended Complaint related to this case. 26 (Doc. 37 at 1.) Plaintiff argues that Defendants should not be permitted to seize legal 27 materials from her cell and should be sanctioned for doing so, and that the legal materials 28 1 Plaintiff is transgender, and the Court refers to her using her preferred pronouns. 1 should be returned to her. (Id. at 1-2.) In support of her arguments, Plaintiff cites Gomez 2 v. Vernon, 255 F.3d 1118, 1131 (9th Cir. 2001), a case in which government counsel 3 “received, read, and used bootlegged copies of legal correspondence between inmates 4 and their lawyer” and used the information for tactical advantage. Plaintiff does not claim 5 that counsel for the government in the instant matter engaged in analogous conduct. 6 Plaintiff also cites Cody v. Weber, 256 F.3d 764, 768 (8th Cir. 2001), in which the Court 7 found that “the taking of an inmate’s legal papers can be a constitutional violation when 8 it infringes [her] right of access to the courts” and therefore “the destruction or 9 withholding of inmates’ legal papers burdens a constitutional right, and can only be 10 justified if it is reasonably related to a legitimate penological interest.” 11 To her Motion, Plaintiff attaches a declaration in which she re-alleges the facts set 12 forth in the Motion. (Doc. 37-1.) The declaration states that prison officials confiscated 13 the following documents pertaining to the above-captioned case: (1) eleven inmate 14 affidavits; (2) draft of First Amended Complaint; (3) copies of “evidence” from other 15 cases; and (4) legal correspondence with the ACLU, attorney Jonathan Smith, and 16 Senator Kyrsten Sinema. (Id.) Plaintiff also attaches a declaration from inmate Ryan 17 Forrest, who is not a party to this lawsuit, in which Mr. Forrest states that the prison 18 officials involved in the search of Plaintiff’s cell confiscated Mr. Forrest’s legal 19 documents. (Doc. 37-1.) 20 In Response, the Government contends that Plaintiff has not met the requirements 21 for a motion under Fed. R. Civ. P. 11 or 37, the issues Plaintiff complains of are outside 22 the scope of this litigation, and the search of Plaintiff’s cell was proper. (Doc. 43 at 1.) 23 According to the Government’s version of the facts, on August 4, 2020, another inmate— 24 not Plaintiff—refused to leave the Special Housing Unit (“SHU”) and return to general 25 population because Plaintiff was preparing legal work for him and was in possession of 26 his legal papers. (Id.) The next day, prison officials searched Plaintiff’s cell and found 27 legal documents belonging to eight other inmates. (Id.) They confiscated these 28 documents, which were then reviewed by Lorri Mitchell, a legal assistant at the Federal 1 Correctional Complex in Tucson, AZ, whose declaration is attached to the Response. 2 (Id.) Ms. Mitchell declares that, of the 207 pages of legal documents she reviewed, only 3 eight pages related to this case. (Id. at 1-2.) These eight pages were returned to Plaintiff 4 on August 12, 2020. (Id. at 2.) 5 The Government’s Response then discusses the Bureau of Prisons (“BOP”) 6 policies regarding inmate preparation of legal work and how those policies are enacted in 7 the SHU. (Id.) Inmates are permitted to assist other inmates in preparing legal documents 8 but may possess another inmate’s legal materials only while in the main law library or 9 another location of the institution the Warden designates. (Id.); 28 C.F.R. § 543.11(f)(2). 10 In the SHU, the designated area for assisting other inmates is the law library located in 11 the SHU. (Id.) 12 The Government argues that Plaintiff violated BOP regulations by possessing 13 legal documents belonging to eight other inmates in her cell and therefore she is not 14 entitled to relief. (Doc. 43 at 3); see also 28 C.F.R. § 543.11. The Government further 15 argues that Plaintiff has not complied with the requirements of Fed. R. Civ. P. 11 or with 16 the local rules governing discovery disputes. (Id.) The Government specifically states that 17 Plaintiff has not complied with the “meet-and-confer” requirement of LRCiv 7.2(j) 18 regarding discovery disputes because she has made no effort to confer with the 19 Government regarding the missing documents. (Id.) 20 Finally, the Government argues that the confiscated documents should not be 21 ordered returned to Plaintiff because doing so would interfere with the prison’s execution 22 of its policies. In support, the Government cites Bell v. Wolfish, 441 U.S. 520, 547-48 23 (1979) (internal quotations omitted), in which the Supreme Court stated: 24 [T]he problems that arise in the day-to-day operation of a corrections facility are not susceptible of easy solutions. 25 Prison administrators therefore should be accorded wide- 26 ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve 27 internal order and discipline and to maintain institutional 28 security. Such considerations are peculiarly within the province and professional expertise of corrections officials, 1 and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to 2 these considerations, courts should ordinarily defer to their 3 expert judgment in such matters. 4 The Government argues that the search of Plaintiff’s cell was for legitimate 5 penological purposes, that the documents belonging to Plaintiff were returned to her, and 6 that no grounds for sanctions have been provided. 7 In Reply, Plaintiff argues that (1) declarant Lorri Mitchell was not present during 8 the August 5, 2020 cell search; (2) Plaintiff was not in possession of any other inmates’ 9 “legal work”; (3) Bell v. Wolfish, 441 U.S. 520 (1979) is inapposite; and (4) she complied 10 with the “meet-and-confer” requirement for discovery disputes because she wrote a letter 11 to Government counsel in this case on July 28, 2020 “about ongoing false statements and 12 misconduct,” to which Government counsel did not reply. (Doc. 45.) 13 B. Discussion 14 As an initial matter, Plaintiff has not complied with the requirements of Rule 11. 15 Rule 11(b) sets forth the grounds upon which sanctions may be issued pursuant to Rule 16 11(c). Rule 11(c) requires that the party moving for sanctions must make its motion for 17 sanctions separately from any other motion and must “describe the specific conduct that 18 violates Rule 11(b).” Plaintiff has not made her motion for sanctions separately from any 19 other motion. To the contrary, the Motion for Sanctions is combined with numerous other 20 requests relating to the allegedly confiscated documents. (Doc. 37.) Furthermore, Plaintiff 21 has not described the specific conduct that violates Rule 11(b), and none of Defendants’ 22 alleged actions are contemplated by Rule 11(b). Plaintiff has not met the requirements for 23 sanctions under Rule 11. 24 Plaintiff also has not complied with the “meet-and-confer” requirement of LRCiv 25 7.2(j). Plaintiff alleges that she wrote to Government counsel regarding “ongoing false 26 statements and misconduct.” This allegation does not show that Plaintiff attempted to 27 contact Government counsel to obtain the missing documents or otherwise resolve the 28 dispute presented by this Motion. 1 In another case pending before this Court, 4:18-cv-00535-RM, the Court recently 2 addressed Plaintiff’s claims that approximately 200 pages of legal documents were taken 3 from her cell on August 5, 2020 and not returned to her. (4:18-cv-00535-RM, Doc. 103.) 4 In that case, the Court ordered Defendant BOP to submit the seized documents under seal 5 for in camera review. (Id.) The Court took under advisement Plaintiff’s Motion for 6 Sanctions pending its review of the seized documents. (Id.) Due to the deficiencies 7 identified above and because the Court is addressing this same issue in 4:18-cv-00535- 8 RM, it will deny the pending Motion. See Tagle v. Nevada, No. 9 316CV00148MMDWGC, 2017 WL 11496980, at *2 (D. Nev. June 14, 2017) (“Filing 10 multiple motions requesting the same relief is an abusive litigation tactic that taxes the 11 resources of the Court and all of the parties to a lawsuit.”) 12 II. Motion for Hearing (Doc. 46) and Motion to Strike (Doc. 47) 13 Plaintiff filed a Motion for Hearing (Doc. 46) which reiterates and expands upon 14 many of the arguments raised in the briefing on her Motion for Sanctions (Docs. 37, 43, 15 45) as well as the briefing on her Motion for Preliminary Injunction (Docs. 11, 26, 27, 29, 16 34, 38). In response, Defendants filed a Motion to Strike, arguing that Plaintiff’s Motion 17 for Hearing is not authorized by any rule or order and is an inappropriate attempt at a sur- 18 reply. (Doc. 47); LRCiv 7.2(m). 19 Plaintiff’s Motion for Hearing is not authorized by an order of this Court or any 20 rule or statute, and impermissibly seeks to reiterate or expand the arguments that Plaintiff 21 has previously raised in her pending Motions. Furthermore, LRCiv 7.2(f) provides that a 22 party desiring oral argument must request it by placing “Oral Argument Requested” 23 immediately below the title of a motion. Plaintiff did not comply with this Rule and even 24 if she had, the Court does not find that oral argument would assist it in determining either 25 the Motion for Sanctions or the Motion for Preliminary Injunction. LRCiv 7.2(f). 26 . . . . 27 . . . . 28 . . . . 1 Accordingly, 2 IT IS ORDERED that Plaintiff's Motion for Sanctions, Protective Order, and 3 || Motion to Compel (Doc. 37) is denied. 4 IT IS FURTHER ORDERED that Defendants’ Motion to Strike (Doc. 47) is □□ granted. Plaintiff's Motion for Hearing (Doc. 46) shall be stricken from the record. 6 Dated this 29th day of September, 2020. 7 3 10 —D te □□ Honorable Rostsiary □□□□□□□ 1] United States District □□□□□ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-