Ackley v. Carroll et al
Filing
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ORDER Adopting FINDINGS AND RECOMMENDATIONS And Granting In Part And Denying In Part Defendants' Motion For Summary Judgment (ECF Nos. 47 , 56 , 57 ), ORDER Denying Plaintiff's Motion For Appointment Of Expert Witness, Motion For Appointment Of Counsel, And Motion To Set A Settlement Conference, signed by Chief Judge Anthony W. Ishii on 7/12/2011. (Fahrney, E)
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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,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND GRANTING IN
P AR T AN D D E N YING IN P AR T
DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
Defendants.
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CASE NO. 1:06-cv-00771-AWI-SMS PC
(ECF Nos. 47, 56, 57)
v.
D. CARROLL, et al.,
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ORDER DENYING PLAINTIFF’S MOTION FOR
APPOINTMENT OF EXPERT WITNESS,
MOTION FOR APPOINTMENT OF COUNSEL,
AND MOTION TO SET A SETTLEMENT
/ CONFERENCE
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I.
Findings and Recommendations
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Plaintiff Donald J. Ackley (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United
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States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On November 29, 2010, Defendants filed a motion for summary judgment, and Plaintiff filed
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an opposition on December 22, 2010. On June 1, 2011, the Magistrate Judge issued findings and
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recommendations recommending that Defendant’s motion for summary judgment be granted in part
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and denied in part. The undersigned has considered Plaintiff’s objections, filed on July 1, 2011.
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Plaintiff objects to the findings and recommendations because he alleges that Defendants
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Uribe and Carroll failed to protect him from being struck by a round fired by Defendant Wright. In
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both the complaint and declaration filed in opposition to the motion for summary judgment, Plaintiff
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contended and provided evidence that the fight was over at the time Defendant Wright fired the
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weapon. As such, the Magistrate Judge correctly found a disputed issue of fact on Defendant
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Wright’s use of force. However, prior to the findings and recommendations being filed, Plaintiff
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only provided evidence that Defendants Uribe and Carroll did not intervene to stop the attack and
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subsequent shooting. In the objections, Plaintiff now alleges that at the time of the shooting the
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fight was not only over, it was Defendant Uribe who made Plaintiff stand up, resulting in Defendant
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Wright shooting Plaintiff. No evidence concerning this fact was ever presented in the complaint or
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declaration in response to the Motion for Summary Judgment. As such, this allegation cannot be
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considered. Factual assertions that could have been but were not presented to the Magistrate Judge
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should be given no consideration when the court is deciding whether to adopt Findings and
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Recommendations. Wade v. Liles, 2007 WL 2481881, *2 (E.D.Cal. 2007); Sundaram v. County of
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Santa Barbara, 2001 WL 540515, *1 (C.D.Cal. 2001); Beam System, Inc. v. Checkpoint Systems,
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Inc., 1997 WL 423113, *9 n.9 (C.D.Cal. 1997). Considering Plaintiff’s allegations in the complaint
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and declaration and taking these allegations as true, there is nothing to indicate that Defendants Uribe
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or Carroll were aware that Plaintiff was in danger of being struck by the round fired and failed to act
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in response to such knowledge. Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010).
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the undersigned finds the
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findings and recommendations to be supported by the record and by proper analysis.
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II.
Motion for Settlement Conference
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Plaintiff also requests that the case be referred for settlement. The Federal Rules of Civil
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Procedure authorize settlement discussions at any pretrial conference. Fed.R.Civ.P. 16(c)(9). While
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federal courts have the authority to require the parties to engage in settlement conferences, they have
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no authority to coerce settlements. Goss Graphic Systems, Inc. v. DEV Industries, Inc., 267 F.3d
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624, 627 (7th Cir. 2001.) Defendants have not indicated to the Court that they are willing to
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participate in a settlement conference. As Plaintiff was previously advised, no settlement conference
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will be scheduled until such time as both parties agree to participate in one.
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III.
Motion for Appointment of Counsel
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Plaintiff has requested the appointment of counsel. The United States Supreme Court has
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ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983
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cases. Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296, 298,
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109 S.Ct. 1814, 1816 (1989). In certain exceptional circumstances, the court may request the
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voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Rand v. Rowland, 113 F.3d
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1520, 1525 (9th Cir. 1997). Without a reasonable method of securing and compensating counsel,
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this court will seek volunteer counsel only in the most serious and exceptional cases.
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In the present case, the Court does not find the required exceptional circumstances. See
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Rand, 113 F.3d at 1525. Even if it is assumed that Plaintiff is not well versed in the law and that he
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has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.
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This court is faced with similar cases almost daily. Therefore, Plaintiff's request for the appointment
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of counsel shall be denied.
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IV.
Withdrawal of Request for Jury Trial
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In his objection Plaintiff requests a court trial. Claims brought under 42 U.S.C. § 1983 are
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triable by jury, Solis v. County of Los Angeles, 514 F.3d 946, 953-54 (9th Cir. 2008); City of
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Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 709 (1999), and Defendants timely
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demanded a trial by jury in their answer filed on April 20, 2009. Fed. R. Civ. Proc. 38(b).
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Accordingly, unless the parties stipulate to a court trial, this action shall remain a jury action. Fed.
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R. Civ. Pro. 39(a).
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V.
Order
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Accordingly, IT IS HEREBY ORDERED that:
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1.
The findings and recommendations, filed June 1, 2011, is adopted in full;
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2.
Defendants’ motion for summary judgment, filed November 29, 2010, is GRANTED
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IN PART and DENIED IN PART as follows:
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a.
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Defendants’ motion for summary adjudication as to Plaintiff’s claims against
Defendant Uribe are GRANTED;
b.
Defendants’ motion for summary adjudication as to Plaintiff’s excessive
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force claim against Defendant Carroll is GRANTED;
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c.
Defendants’ motion for summary adjudication as to Plaintiff’s retaliation
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claims against Defendant Carroll:
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Arising out of the incidents on October 14, 2007, are DENIED;
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Arising out of all remaining incidents are GRANTED;
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d.
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force claim against Defendant Wright is DENIED;
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e.
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Defendants’ motion for summary adjudication on the grounds of qualified
immunity for the excessive force claim against Defendant Wright is
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Defendants’ motion for summary adjudication as to Plaintiff’s excessive
DENIED;
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This action is proceeding against Defendant Wright on Plaintiff’s claim of excessive
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force and against Defendant Carroll for retaliation arising out of the incidents on
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October 14, 2007;
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4.
Plaintiff’s motion for appointment of an expert witness is DENIED;
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5.
Plaintiff’s motion for a settlement conference is DENIED;
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6.
Plaintiff’s motion for appointment of counsel is DENIED;
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7.
Plaintiff’s motion for a court trial is DENIED; and
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8.
This matter is referred back to the Magistrate Judge to set for trial by jury on the
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remaining claims.
IT IS SO ORDERED.
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Dated:
0m8i78
July 12, 2011
CHIEF UNITED STATES DISTRICT JUDGE
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