Ackley v. Carroll et al

Filing 126

ORDER DENYING Motion for Late Settlement and Thief of Payment Agreement 118 ; ORDER DENYING Motion in Support of Violation By Defendants Violating a Court Order 121 ; ORDER DENYING Request That Settlement Agreement Be Enforced By Defendants as Moot 122 , signed by Magistrate Judge Barbara A. McAuliffe on 10/30/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONALD J. ACKLEY,

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Plaintiff,

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v.
D. CARROLL, et al.,
Defendants.

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Case No.: 1:06-cv-00771-AWI-BAM PC
ORDER DENYING MOTION FOR LATE
SETTLEMENT AND THIEF OF PAYMENT
AGREEMENT (ECF No. 118)
ORDER DENYING MOTION IN SUPPORT OF
VIOLATION BY DEFENDANTS VIOLATING A
COURT ORDER (ECF No. 121)
ORDER DENYING REQUEST THAT
SETTLEMENT AGREEMENT BE ENFORCED
BY DEFENDANTS AS MOOT (ECF No. 122)

Plaintiff Donald J. Ackley (“Plaintiff”) is a state prisoner who was proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On August, 8, 2012, the parties

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participated in a settlement conference before the undersigned. During the course of that conference,

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the parties reached an agreement and placed the settlement terms on the record. Thereafter, on August

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17, 2012, the parties submitted a signed stipulation to dismiss the action with prejudice. Pursuant to

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the stipulation, the Court dismissed the action with prejudice on August 21, 2012.

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On April 5, 2013, Plaintiff filed a motion for late settlement and thief of payment agreement.

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Plaintiff complained that the settlement agreement had been violated because (1) the California

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Department of Corrections and Rehabilitation (“CDCR”) took $650.00 dollars from the $2000.00
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settlement funds; and (2) he did not receive an AM/FM CD player boom box radio as agreed. (ECF

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No. 118.)

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On April 10, 2013, Defendants Carroll and Wright filed an opposition to Plaintiff’s motion

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regarding the settlement agreement. Defendants reported that Plaintiff had received the settlement

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funds. However, with regard to Plaintiff’s complaint that restitution should not have been taken out of

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the settlement funds, Defendants noted that the written settlement agreement between the parties

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explicitly provided that outstanding restitution obligations would be taken out of the settlement

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amount. (ECF No. 119, Ex. A.) With regard to Plaintiff’s dissatisfaction with the radio, Defendants

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noted that Plaintiff agreed to be satisfied with whatever was available in the property room, subject to

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the Warden’s approval. (ECF No. 119, Ex. A.)
On May 1, 2013, Plaintiff filed a motion in support of Defendants violating a court order.

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Plaintiff again complained that officials at his current institution would not allow him to have a radio

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of his choosing or honor the settlement agreement. (ECF No. 121.)

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On June 12, 2013, Plaintiff filed a third motion requesting that the settlement agreement be

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enforced by Defendants. Plaintiff again complained that officials at his current institution were not

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honoring the settlement agreement and were refusing to allow him to pick a radio of his choosing.

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(ECF No. 122.)

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On June 17, 2013, Defendants filed an opposition to Plaintiff’s third motion to enforce the

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settlement agreement. Defendants stood on their opposition filed on April 10, 2013. (ECF No. 123.)

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Subsequent to that time, on October 29, 2013, Defendants filed a supplemental opposition. In the

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supplement, Defendants represented that Plaintiff received a Sony Discman, adapter, and headphones

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from the Receiving and Release Sergeant at Salinas Valley State Prison in satisfaction of the

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settlement terms of this action on October 23, 2013. (ECF No. 124.) Defendants also provided a

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signed statement from Plaintiff acknowledging his receipt of the Sony Discman relative to this action.

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(ECF No. 124, Ex. A.)

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After consideration of the foregoing, the Court does not find any basis to intervene for

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enforcement of the settlement agreement. With regard to the restitution taken from Plaintiff’s

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settlement funds, the settlement agreement signed by both parties clearly stated that not only was
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CDCR obligated to collect restitution but that any outstanding restitution would be deducted from the

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settlement amount and paid on behalf of Plaintiff. (ECF No. 119, Ex. A.) With regard to the radio of

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Plaintiff’s choosing, the evidence submitted by Defendants establishes that Plaintiff has been provided

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with a radio in satisfaction of the settlement terms. (ECF Nos. 124 and 125, Ex. A.) Plaintiff’s

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complaints regarding the settlement agreement are therefore moot and his motions shall be denied.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1. Plaintiff’s Motion for Late Settlement and Thief of Payment Agreement, filed on April 5,
2013, is DENIED;

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2.

May 1, 2013, is DENIED; and

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Plaintiff’s Motion in Support of Violation by Defendants Violating a Court Order, filed on

3. Plaintiff’s Motion for an Order Requesting that Settlement Agreement Be Enforced by
Defendants, filed on June 12, 2013, is DENIED as moot.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

October 30, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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