Garcia v. Sleeley ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUBEN DARIO GARCIA, JR., Case No.: 14-CV-1525 JLS (RBM) 12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE PLAINTIFF’S SECOND EX PARTE APPLICATION FOR 14 SLEELEY, et al., COPIES 15 Defendants. (ECF No. 195) 16 17 Presently before the Court is Plaintiff Ruben Dario Garcia, Jr.’s Second Ex Parte 18 Application for Copies of Docket Filing Records in the Above Entitle[d] Matter (“Ex Parte 19 App.,” ECF No. 195), in which he again requests copies of voluminous court records in 20 connection with his current appeal before the United States Court of Appeals for the Ninth 21 Circuit, Garcia v. Seeley, No. 19-56128 (9th Cir. filed Sept. 25, 2019) (the “Appeal”). 22 On October 25, 2019, Plaintiff requested copies of 63 documents totaling 1020 23 pages: ECF Nos. 27, 28, 36, 37, 39, 41, 42, 43, 50, 62, 65, 66, 68, 69, 71, 73, 74, 80, 90, 24 105, 106, 115, 116, 117, 118, 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 25 137, 138, 139, 140, 141, 142, 143, 144, 146, 147, 148, 150, 151, 153, 157, 161, 162, 164, 26 167, 168, 173, 174, 175, 176, 177, 178, and 179. See ECF No. 191 at 1. On November 6, 27 2019, the Court granted in part and denied in part Plaintiff’s request, ordering the Clerk of 28 the Court to send Plaintiff copies of Magistrate Judge Ruth Bermudez Montenegro’s 1 May 22, 2019 Report and Recommendation (ECF No. 173); the Court’s August 19, 2019 2 Order: (1) Overruling Plaintiff’s Objections, (2) Adopting Report and Recommendation, 3 and (3) Granting Defendants’ Motions for Summary Judgment (ECF No. 178); and the 4 Clerk of the Court’s August 19, 2019 Judgment in a Civil Case (ECF No. 179). See ECF 5 No. 192 at 2. The Court denied Plaintiff’s request as to the remaining documents, however, 6 on the grounds that “Plaintiff’s request is . . . disproportionately burdensome on the Court, 7 particularly given that ‘[a]ppellants . . . proceeding without counsel need not file the initial 8 excerpts, supplemental excerpts or further excerpts of record.’” Id. (quoting 9th Cir. R. 9 30-1.2) (citing Wahl v. Sutton, No. 116CV01576LJOBAMPC, 2019 WL 5536318, at *1 10 (E.D. Cal. Oct. 25, 2019)). 11 On November 19, 2019, Plaintiff requested that the Ninth Circuit provide him with 12 copies of the same documents, claiming that he “need[s] to review these filings before 13 completing [his] Opening Brief or to present them as Excerpts of Record[] supporting the 14 brief.” Appeal D.E. 10 at 1. The Ninth Circuit denied Plaintiff’s request on December 17, 15 2019, noting that “[a]ppellant may request the document[s] directly from the district court.” 16 Appeal D.E. 11 at 1. The Ninth Circuit added that, “[b]ecause appellant is proceeding 17 without counsel, the excerpts of record requirement is waived.” Id. at 2 (citing 9th Cir. R. 18 30-1.2). 19 Plaintiff now requests copies of 50 documents comprising 768 pages: ECF Nos. 29, 20 41, 42, 43, 65, 66, 68, 69, 71, 73, 74, 105, 106, 116, 117, 118, 119, 121, 122, 123, 124, 21 125, 126, 127, 128, 129, 130, 131, 137, 138, 139, 140, 141, 142, 143, 144, 145, 147, 148, 22 150, 151, 157, 161, 164, 167, 168, 174, 175, 176, and 177. See Ex Parte App. at 2. Plaintiff 23 claims that “he needs to be provided by the[] U.S.D.C. copies of the . . . docket records 24 because ‘he needs to review them prior to completing his Opening Brief’” because “without 25 these records he won’t be able to properly prosecute his case against named defendant on 26 appeal . . . because he won’t be able to examine and consider these filing[s] prior to 27 completing his Opening Brief ‘denying him a fair hearing.’” Id. 28 / / / 1 As the Court previously explained, see ECF No. 192 at 2, “[w]hile ‘prisoners have 2 || a constitutional right of access to the courts,’ . . . there is no constitutional right to receive 3 || photocopies free of charge.” Myers v. Paramo, No. 18CV2239-DMS(BLM), 2019 WL 4 || 1982218, at *2 (S.D. Cal. May 3, 2019) (quoting Bounds v. Smith, 430 U.S. 817, 821 5 ||(1977)) (citing Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1990), overruled on other 6 || grounds by Lewis v. Casey, 518 U.S. 343, 351 (1996)). “The rule prohibiting free 7 || photocopies is the same for plaintiffs proceeding in forma pauperis.” Id. (collecting cases) 8 ||(citing Hadsell v. Comm’r Internal Revenue Serv., 107 F.3d 750, 752 (9th Cir. 1997); 9 || Dixon v. Yist, 990 F.2d 478, 480 (9th Cir. 1993); Tedder v. Odel, 890 F.2d 210, 211-12 10 || Oth Cir. 1989) (per curiam)); accord Eusse v. Vitela, No. 3:13-CV-00916-BEN, 2015 WL 11 |}4641870, at *3 (S.D. Cal. Aug. 4, 2015) (“In forma pauperis status does not entitle a 12 || prisoner to free copies of documents from the existing Court record.”) (quoting Armstead 13 || v. United States, No. C11-1352, 2012 WL 380280, at *1 (W.D. Wash. Feb. 6, 2012)). 14 “Here, given the breadth of the request, the lack of statutory authorization for such 15 expense, and Plaintiff’s failure to establish a specific need related to the instant case 16 the Court declines to authorize the requested production of documents.” See Myers, 17 }}2019 WL 1982218, at *3. The Court therefore DENIES WITHOUT PREJUDICE 18 Plaintiff's Ex Parte Application. Plaintiff MAY FILE a renewed motion if he can 19 || articulate a specific need for particular documents to prepare his Opening Brief. 20 IT IS SO ORDERED. 21 22 ||Dated: January 27, 2020 . tt f te 23 on. Janis L. Sammartino United States District Judge 25 26 27 28