(PC) Arena v. Cervantes ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PETER MICHAEL ARENA, Case No. 1:21-cv-00928-JLT-BAM (PC) 12 Plaintiff, ORDER STAYING BRIEFING ON DEFENDANTS’ MOTION FOR SUMMARY 13 v. JUDGMENT (ECF No. 42) 14 CERVANTES, et al., ORDER DIRECTING DEFENDANTS TO 15 Defendants. RESPOND TO PLAINTIFF’S MOTION TO DISMISS SUIT WITHOUT PREJUDICE 16 (ECF No. 43) 17 TWENTY-ONE (21) DAY DEADLINE 18 ORDER DIRECTING CLERK OF COURT TO FORWARD COPIES OF PLAINTIFF’S 19 MOTION TO DISMISS AND INSTANT ORDER TO WARDEN OF CALIFORNIA 20 STATE PRISON, SACRAMENTO 21 22 Plaintiff Peter Michael Arena (“Plaintiff”) is a state prisoner proceeding pro se and in 23 forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds 24 against Defendants Cervantes, Berlanga, Cerda-Jirano, Moreno, and Ceja for excessive force in 25 violation of the Eighth Amendment. 26 On January 9, 2023, Defendants filed a motion for summary judgment on the grounds that 27 the undisputed facts show that Plaintiff’s claims are barred under the favorable termination 28 doctrine in Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). (ECF No. 42.) Plaintiff’s 1 opposition is currently due on or before February 2, 2022. Local Rule 230(l). 2 Currently before the Court is Plaintiff’s Motion to Dismiss Without Prejudice, filed 3 January 26, 2023. (ECF No. 43.) In the motion, Plaintiff states that on January 19, 2023, 4 Correctional Officer Phelps entered Plaintiff’s cell, CSP-Sac B7 #124, and removed all of 5 Plaintiff’s personal property, including all of his legal property, legal mail, law books, 6 Defendants’ motion for summary judgment, and every single item except Plaintiff’s state linen 7 and mattress. Plaintiff was told by Lieutenant Anderson that he was placing Plaintiff on property 8 restriction, including legal property and all legal mail and documents inside Plaintiff’s cell, for 90 9 days. Plaintiff had received Defendants’ motion for summary judgment on January 19, 2023, the 10 same day Officer Phelps confiscated all of Plaintiff’s legal property needed to respond to the 11 motion. (Id.) 12 Plaintiff further states that he was thrown violently down to the cement floor, as they 13 removed his property while he was in full restraints. Correctional Officers Morena and Acuna 14 told Plaintiff to stop filing lawsuits. Plaintiff argues that he cannot respond to Defendants’ 15 motions or meet any Court deadlines without his legal documents in his possession. Plaintiff 16 does not have the Attorney General’s address or name or case number if he does not have his 17 legal documents in his possession. Plaintiff alleges that the retaliation (in the form of a physical 18 assault, false RVR and threat to stop this lawsuit) is all recorded on the B7 video camera footage 19 in the dayroom, at approximately 8:00 p.m. on January 19, 2023. Plaintiff submitted a CDC 20 appeal concerning his property, but the response date will be well beyond the 21-day deadline to 21 respond to Defendants’ summary judgment motion, which Plaintiff no longer possesses. Plaintiff 22 therefore requests that the Court dismiss this case, without prejudice, because of the retaliation 23 and impediment to this suit resulting from the confiscation of Plaintiff’s legal documents, books, 24 and case information. Plaintiff states that this is the second time his legal property has been taken 25 to prevent him from using the court system, and prays that the Court will dismiss without 26 prejudice and intervene where matters of property concerning civil suits lie. (Id.) 27 Federal Rule of Civil Procedure 41(a)(1)(A)(ii) provides that a “plaintiff may dismiss an 28 action without a court order by filing a stipulation of dismissal signed by all parties who have 1 appeared.” Fed. R. Civ. P. 41(a)(1)(A)(ii). Therefore, Plaintiff may dismiss this action by filing a 2 stipulation of dismissal that is signed by all parties who have appeared. However, the motion 3 includes only Plaintiff’s signature. 4 A party may also dismiss an action by filing a motion requesting the Court to dismiss the 5 action. Fed. R. Civ. P. 41(a)(2). A motion for voluntary dismissal under Rule 41(a)(2) is 6 addressed to the sound discretion of the district court. Hamilton v. Fireston Tire & Rubber Co. 7 Inc., 679 F.2d 143, 145 (9th Cir. 1982). 8 The Court finds that Plaintiff may be attempting to file a motion to dismiss this action 9 pursuant to Rule 41(a)(2). However, in light of the serious and concerning allegations regarding 10 the confiscation of all of Plaintiff’s legal property and multiple instances of retaliation in response 11 to Plaintiff’s pending litigation, it is not clear to the Court whether Plaintiff actually intended to 12 request an extension of time to respond to Defendants’ motion for summary judgment, rather than 13 a dismissal of the entire action. Such allegations, if true, are of great concern to the Court, and at 14 this time it does not appear that a dismissal is warranted without further information. 15 Therefore, Defendants are directed to file a response to Plaintiff’s motion, specifically 16 addressing the allegations raised regarding the confiscation of Plaintiff’s legal property for ninety 17 days. The deadline for Plaintiff to file an opposition to Defendants’ motion for summary 18 judgment is vacated, and further briefing on Defendants’ motion is stayed, pending resolution of 19 Plaintiff’s motion to dismiss. In addition, in light of the seriousness of Plaintiff’s allegations, the 20 Court finds it appropriate to serve a copy of this order on the Warden of California State Prison – 21 Sacramento, that he might be made aware of the allegations Plaintiff has raised against these 22 officers and take any actions that are warranted under the circumstances. 23 Accordingly, it is HEREBY ORDERED as follows: 24 1. Briefing on Defendants’ motion for summary judgment, (ECF No. 42), is STAYED 25 pending further order of the Court; 26 2. Within twenty-one (21) days from the date of service of this order, Defendants are 27 DIRECTED to file a response to Plaintiff’s motion to dismiss, (ECF No. 43), as discussed 28 above; and 1 3. The Clerk of the Court is DIRECTED to forward a copy of Plaintiff’s motion to dismiss, 2 (ECF No. 43), and a copy of this order to the Warden of California State Prison – 3 Sacramento, that he might be made aware of the serious allegations Plaintiff has raised. 4 IT IS SO ORDERED. 5 6 Dated: January 27, 2023 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28