(PC) Hammler v. Gooch ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00653-JLT-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF’S 13 v. MOTION FOR AN ORDER UNDER THE ALL WRITS ACT BE DENIED 14 GOOCH, et al., (ECF No. 105) 15 Defendants. OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS 16 17 18 Allen Hammler (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action filed pursuant to 42 U.S.C. § 1983. This case is proceeding on Plaintiff’s 20 Eighth Amendment claim for deliberate indifference to a serious risk of harm against defendant 21 Salcedo and his Eighth Amendment medical indifference claims against defendants Salcedo, 22 Gooch, and Burnes. (ECF Nos. 14, 23, & 97). 23 On May 1, 2023, Plaintiff filed what the Court construes as a motion for an order under 24 the All Writs Act, asking the Court to order prison officials to “grant him access to the phone and 25 text message, along with e-mail app(s) available by and through his Global Tel-Link tablet.” 26 (ECF No. 105). 27 This motion is now before the Court. For the reasons described below, the Court will 28 recommend that this motion be denied. 1 I. PLAINTIFF’S MOTION 2 Plaintiff asserts that he is working with a team of “person(s)” outside prison who provide 3 him financial assistance upon being lobbied and if funds are available. 4 Plaintiff further alleges that his incarcerated witness list and other evidence that he needs 5 at trial was illegally confiscated on January 18, 2023. On that date, officer(s) entered his cell and 6 ransacked it for no penological reason. They also mixed millions of his loose-leaf pages together. 7 A large number of documents are unaccounted for, including work-product, case notes, and trial 8 strategies. Thus, Plaintiff has to rethink his plans for trial, and he now needs to call a number of 9 unincarcerated witnesses. To do this, Plaintiff needs funds to provide to the United States 10 Marshal, and he can acquire the necessary funds if granted access to the phone, e-mail, and text 11 message app(s) on his Global Tel-Link (“GTL”) tablet (which he is already in possession of). 12 Plaintiff also wants access to his tablet so that he can engage in interviews and direct his pro bono 13 team members. 14 Plaintiff further alleges that he is already being provided access to the pay phone in the 15 prisoner’s common area twice a week pursuant to an order issued by a superior court in an 16 unrelated case. That order precedes the GTL tablet technology being implemented, and is being 17 revisited. 18 Plaintiff asserts that mail is not viable where instant responses are needed to ensure that 19 opportunities are not lost to garner agreements where non-incarcerated witnesses have jobs and 20 family obligations, and his ability to bend to their schedules by sending them a text or e-mail via 21 GTL will increase the chance that trial “will go off without a hitch….” 22 Plaintiff further alleges that, as he wrote the motion, he could hear the prisoner in the cell 23 next to his speaking on his GTL, while Plaintiff is being denied. Warden Lynch and his law staff 24 created a block to the new technology. In doing so, they neglected to apply Turner. Moreover, 25 there is no California Code of Regulation on the issue, and the public’s voice has not been heard. 26 Finally, Plaintiff alleges that he has to be escorted to the phone in the prisoner’s common 27 area, but because he has a tablet, he need not be taken from his cell at all in order to use the 28 phone. This would obviate the need for any and all physical contact, and would reduce the risk to 1 officers and himself during escorts. 2 Plaintiff asks the Court to order prison officials to “grant him access to the phone and text 3 message, along with e-mail app(s) available by and through his Global Tel-Link tablet.” (ECF 4 No. 105, p. 1). 5 II. LEGAL STANDARDS 6 Under the All Writs Act, federal courts “may issue all writs necessary or appropriate in 7 aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. 8 § 1651(a). “The power conferred by the Act extends, under appropriate circumstances, to persons 9 who, though not parties to the original action or engaged in wrongdoing, are in a position to 10 frustrate the implementation of a court order or the proper administration of justice, and 11 encompasses even those who have not taken any affirmative action to hinder justice.” United 12 States v. New York Tel. Co., 434 U.S. 159, 174 (1977) (footnote and citations omitted). 13 “Thus, use of the All Writs Act is appropriate in prisoner civil rights cases where non- 14 party correctional officials are impeding the prisoner-plaintiff’s ability to litigate his pending 15 action.” Hammler v. Haas, 2019 U.S. Dist. LEXIS 48377, *3-4 (E.D. Cal., Mar. 22, 2019). See 16 also Mitchell v. Haviland, 2015 U.S. Dist. LEXIS 109106, *5 (E.D. Cal., Aug. 18, 2015) (“Use of 17 the All Writs Act is appropriate in cases where prison officials, not named as defendants, 18 allegedly have taken action that impedes a prisoner’s ability to litigate his case”); Lopez v. Cook, 19 2014 U.S. Dist. LEXIS 52198, 2014 WL 1488518 (E.D. Cal., Apr. 15, 2014) (issuing an order 20 under the All Writs Act requiring prison officials to provide Plaintiff, who was in the Segregated 21 Housing Unit for non-disciplinary reasons, with two contact visits with his counsel). However, 22 “injunctive relief under the All Writs Act is to be used sparingly and only in the most critical and 23 exigent circumstances,” and only “if the legal rights at issue are indisputably clear.” Brown v. 24 Gilmore, 533 U.S. 1301, 1303 (2001) (citations and internal quotation marks omitted). 25 III. ANALYSIS 26 The Court recommends denying Plaintiff’s motion. “[I]njunctive relief under the All 27 Writs Act is to be used sparingly and only in the most critical and exigent circumstances,” Brown, 28 533 U.S. at 1303 (citation and internal quotation marks omitted), and Plaintiff has failed to show 1 that such circumstances exist here. 2 This case is proceeding on Plaintiff’s Eighth Amendment claim for deliberate indifference 3 to a serious risk of harm against defendant Salcedo and his Eighth Amendment medical 4 indifference claims against defendants Salcedo, Gooch, and Burnes. (ECF Nos. 14, 23, & 97). It 5 is not proceeding on a claim that certain tablet functionality is being unconstitutionally withheld. 6 Moreover, Plaintiff has not sufficiently alleged that prison officials are impeding his 7 ability to prosecute this case. Plaintiff does allege that official(s) conducted a search for no 8 penological reason, and relevant documents were taken and/or mixed, but Plaintiff does not 9 sufficiently explain how having access to additional functionality on his tablet would remedy this 10 issue in any way. 11 Instead, he alleges that he needs the functionality so that he can contact unincarcerated 12 witnesses, and so that he can obtain the necessary funding to secure their attendance at trial. 13 However, Plaintiff’s arguments are not persuasive. First, Plaintiff does not provide any details 14 regarding the witnesses he wants to call, or how those witnesses are relevant to this case. Second, 15 Plaintiff does not sufficiently explain why he cannot procure funding or contact witnesses by mail 16 or by phone (Plaintiff asserts that he has phone access). Finally, on January 4, 2023, the Court 17 informed Plaintiff that if he “wishes to have the Marshals Service serve any unincarcerated 18 witnesses who refuse to testify voluntarily, Plaintiff must submit the money orders to the Court 19 no later than April 7, 2023. In order to ensure timely submission of the money orders, Plaintiff 20 must notify the Court of the names and locations of his or her witnesses, in compliance with the 21 instructions above, no later than March 3, 2023.” (ECF No. 87, p. 5). Both of these deadlines 22 have passed, and Plaintiff did not ask the Court to extend them. Thus, it is too late for Plaintiff to 23 have the Marshals Service serve subpoenas on unincarcerated witnesses in any event. 24 As Plaintiff has failed to show that this is a critical and exigent circumstance, and as 25 injunctive relief under the All Writs Act is to be used sparingly, the Court will recommend that 26 Plaintiff’s motion be denied. 27 IV. RECOMMENDATION AND ORDER 28 Based on the foregoing, IT IS HEREBY RECOMMENDED that Plaintiff’s motion for an 1 | order under the All Writs Act (ECF No. 105) be DENIED. 2 These findings and recommendations are submitted to the United States district judge 3 | assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 4 | (14) days after being served with these findings and recommendations, any party may file written 5 || objections with the court. Such a document should be captioned “Objections to Magistrate 6 | Judge’s Findings and Recommendations.” Any response to the objections shall be served and 7 | filed within fourteen (14) days after service of the objections. The parties are advised that failure 8 || to file objections within the specified time may result in the waiver of rights on appeal. 9 | Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 10 | 1391, 1394 (9th Cir. 1991)). 11 b IT IS SO ORDERED. 13 | Dated: _May 3, 2023 [Jee ey □□ 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28