(PC) Bradford v. Usher ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 RAYMOND ALFORD BRADFORD, ) Case No.: 1:17-cv-01128-SAB (PC) ) 9 Plaintiff, ) 10 v. ) ) O OR BD JEE CR T O IOV NE SR , R AU NL DI N DG IR P EL CA TI IN NT GIF DF E’S F ENDANTS TO FILE A RESPONSE TO PLAINTIFF’S 11 C. OGBUEHI, et al. ) REQUEST TO VOLUNTARILY DISMISS THIS ) ACTION 12 Defendants. ) ) (ECF No. 129) 13 ) 14 Plaintiff Raymond Alford Bradford is a state prisoner proceeding pro se and in forma pauperis 15 in this civil rights action pursuant to 42 U.S.C. § 1983. 16 Currently before the Court is Plaintiff’s objections to the Court’s June 3, 2021 order denying 17 his request for an evidentiary hearing and preliminary injunction, filed June 14, 2021. Plaintiff also 18 requests to voluntarily dismiss the action, without prejudice, to appeal prior rulings by the Court. 19 (ECF No. 129.) Defendants did not file an opposition and the time to do so has now passed. 20 On June 3, 2021, the Court denied Plaintiff’s request for an evidentiary hearing and 21 preliminary injunction finding he failed to meet the necessary requirements. (ECF No. 125.) The 22 Court specifically stated, in part, as follows: 23 Plaintiff seeks a preliminary injunction to gain access to his legal and personal property, reimbursement for any lost, damaged, or destroyed property, and a 24-hour observation unit to 24 ensure that his needs are met. Plaintiff’s motion must be denied. 25 This action is proceeding on Plaintiff’s claim against Defendants German, Ulit, Spaeth, and Sao for violation of the Eighth Amendment based on Plaintiff’s allegations related to Valley 26 Fever. Plaintiff’s vague claim that he does not have access to his legal property, alone, does not entitled him to a preliminary injunction. Further, Plaintiff fails to set forth what and why 27 access to his legal property is necessary to participate in his deposition. Moreover, as stated in the Court’s May 20, 2021 order, Defendants have agreed to provide Plaintiff with copies of all 28 1 written discovery that has been exchanged to date. (ECF No. 116 at 2.) In addition, the Court cannot reimburse Plaintiff for any lost, damaged, or destroyed property. See Barnett v. 2 Centoni, 31 F.3d 813, 816–17 (9th Cir. 1994) (citing Cal. Gov't Code §§ 810–895) (California law provides him with an adequate state post-deprivation remedy, and his substantive and 3 procedural due process claims challenging the loss of his property are not cognizable in a § 4 1983 action.). Lastly, with regard to Plaintiff’s request for a 24-hour observation team unit, as stated in the Court’s May 27, 2021 order, “[t]he pendency of this case does not provide 5 Plaintiff with standing to seek relief directed at remedying his current conditions of confinement, which are occurring at a different prison and which involve different prison 6 employees. Plaintiff is not entitled to any relief that is not narrowly drawn to correct the 7 violation of his rights at issue in this action. While Plaintiff may desire to be provided 24-hour assistance, he has failed to demonstrate entitlement to injunctive relief and his motion must be 8 denied.” (ECF No. 121 at 5:4-11) (citations omitted). For the same reasons, Plaintiff is not entitled to an order directing that he be provided 24-hour assistance. 9 10 (ECF No. 125 at 2-3.) Plaintiff contends that “it appears unfair, without common sense or logic, for 11 the court to assume [plaintiff] does not need his legal property or exhibits to defeat summary judgment 12 after being deposed, put another way, plaintiff cannot challenge any argument successfully because 13 the [judge] will not allow it.” (ECF No. 129 at 2.) Plaintiff’s objections shall be overruled. To date, 14 no motion for summary judgment has been filed, and the dispositive motion deadline does not expire 15 until October 21, 2021. (ECF No. 115.) Thus, there is no merit to Plaintiff’s claim that his lack of 16 access to his legal property has caused him prejudice. Furthermore, the Court finds that the more 17 appropriate remedy would be a reasonable extension of any relevant deadline, if the need presents itself in the future. Accordingly, Plaintiff’s objections to the Court’s June 3, 2021 order are overruled. 18 With regard to Plaintiff’s motion to dismiss the action, Plaintiff is advised that subject to 19 exceptions not applicable here, a plaintiff may voluntarily dismiss an action without a court order and 20 without prejudice by filing: 21 (i) a notice of dismissal before the opposing party serves either an answer or a motion for 22 summary judgment; or 23 (ii) a stipulation of dismissal signed by all parties who have appeared. 24 Fed. R. Civ. P. 41(a)(1)(A). Prior to filing the motion to dismiss, Defendants filed an answer. (ECF 25 No. 65.) Therefore, this action cannot be dismissed pursuant to Rule 41(a)(1)(A)(i). However, 26 Defendants may stipulate to dismissal pursuant to Rule 41(a)(1)(A)(ii). If Defendants decline to 27 28 1 || stipulate, the Court may dismiss this action based upon Plaintiff's request, “on terms that the court 2 || considers proper.” Fed. R. Civ. P. 41(a)(2). 3 Accordingly, it is ORDERED that: 4 1. Plaintiff's objections to the Court’s June 3, 2021 order are overruled; and 5 2. Defendants shall have seven days to file and serve a stipulation to the dismissal of this 6 action pursuant to Rule 41(a)(1)(A)@i), or to otherwise respond to Plaintiff's motion tc 7 dismiss. 8 9 || IT IS SO ORDERED. Al (ee 10 |! Dated: _ July 7, 2021 IF 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 If Defendants stipulate, the Court will construe the parties’ filings as a stipulation for voluntary dismissal pursuant to 28 |] Rule 41(a)(1)(AV(i).