George N. Allen v. Mayberg et al

Filing 149

ORDER on 137 143 145 146 Motions signed by Chief Judge B. Lynn Winmill on 4/3/2013. (Sant Agata, S)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
FRESNO DIVISION

GEORGE N. ALLEN, et al.,
Plaintiff,
v.

Case No. 1:06-CV-01801-BLW-LMB
(consolidated cases)
ORDER

STEPHEN MAYBERG, et al.,
Defendants.
(lead)
Including the following member cases:
1:07-CV-00850-BLW (DeBerry)
1:07-CV-00897-BLW (Scott)
1:08-CV-01196-BLW (Chaney)
1:08-CV-01339-BLW (Robinson)
1:09-CV-01890-BLW (Rhoden)
1:09-CV-02153-BLW (Frazier)
1:10-CV-01973-BLW (Vasquez)

Pending before the Court are various motions filed by the parties. Having reviewed
the motions, the Court enters the following Order.
MOTION TO WITHDRAW AS STAND-BY COUNSEL
Stand-by counsel for Plaintiffs, the University of Idaho Legal Clinic, have
requested that they be permitted to withdraw from stand-by representation of the
remaining Plaintiffs in this consolidated action: George Allen, Wayne DeBerry, Henry
ORDER - 1

Scott, and Eldridge Chaney. (Dkt. 137.) Good cause appearing, the Court will grant the
Motion. The Court thanks the University of Idaho Legal Clinic for its willingness to serve
as stand-by counsel in this action to date.
The Court has made it clear in past orders that, even though Court staff are
attempting to find new pro bono counsel for Plaintiffs, that may not be possible, and all
pro se parties must continue representation of themselves pro se during the pendency of
this case. Because there is a pending motion to dismiss, the Court will not sever the
remaining cases immediately, as in its previous Order, but will do so if any claims
remain after the motion is adjudicated. Within 30 days after entry of this Order, Plaintiffs
George Allen, Wayne DeBerry, Henry Scott, and Eldridge Chaney each will be required
to file his own separate response to the pending Motion to Dismiss in this consolidated
case. Failure to file a response in his own name will result in dismissal of that Plaintiff’s
claims.
PLAINTIFF’S MOTION FOR CLARIFICATION
AND DEFENDANTS’ MOTION TO VACATE PORTIONS
OF ORDER RE: DISCLOSURE AND SCHEDULING
Plaintiffs have requested clarification on several items. (Dkt. 143). The first is the
question of service. This case has been in pre-answer mediation for several years, which
has delayed service of some Defendants. The Clerk of Court is responsible for service of
process for indigent litigants, and, thus, if any Defendants remain after the pending
Motion to Dismiss is adjudicated, counsel for Defendants will be required to state
whether they wish to accept service for the remaining Defendants, or whether they wish
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to have public funds expended for the Clerk of Court to effect personal service upon the
remaining Defendants via the United States Marshal Service. If Defendants notify the
Court that they wish to have public funds expended for personal service, then Plaintiffs
will be required to provide the addresses of the remaining Defendants to the Clerk of
Court for service of process, by completing the proper forms.
Plaintiffs also wish to set their own schedules for discovery, because Plaintiff
DeBerry has already completed discovery, and different schedules may be appropriate for
each Plaintiff. If any claims remain after the Motion to Dismiss is adjudicated, each
Plaintiff may file a proposed schedule for discovery (which may include a position that
discovery should now be closed), for expert disclosure, and for dispositive motions.
Defendants ask the Court to reconsider several parts of its prior Order because
counsel for Plaintiffs is withdrawing from the case, including the proposal of a pretrial
schedule and the requirement of voluntary disclosures. Because a Motion to Dismiss is
now pending, these portions of the Order will be vacated. Should any claims survive the
Motion to Dismiss, the remaining cases will be severed, and the parties will be required to
submit proposed scheduling orders in each case and will be required to engage in
voluntary disclosures, with any privileged or security-oriented materials to be submitted
in camera, with a privilege/security log to Plaintiffs (unless the parties agree that
discovery has been completed).

ORDER - 3

ORDER
IT IS ORDERED:
1.

Plaintiff’s Motion for Clarification (Dkt. 143) is GRANTED, to the extent
set forth herein above.

2.

Defendants’ Motion to Vacate a Portion of the February 12, 2013 Order
(Dkt. 146) is GRANTED, to the extent set forth herein above.

3.

Plaintiffs’ Motion for Extension of Time to File Responses to the Motion to
Dismiss (Dkt 145) is GRANTED. The Responses shall be due no later than
May 20, 2013.

4.

The Motion to Withdraw as Attorney of Record for Plaintiffs (Dkt. 137) is
GRANTED.

5.

The Clerk of Court shall send a copy of this Order to the remaining
Plaintiffs as follows:
A.

George Allen, Unit 11 CO-00203-0, Coalinga State Hospital, P.O.
Box 5003, Coalinga, CA 93210-5003;

B.

Wayne DeBerry, Unit 2 CO-00216-2, Coalinga State Hospital, P.O.
Box 5003, Coalinga, CA 93210-5003;

C.

Henry Scott, Unit 13 CO-002045-1, Coalinga State Hospital, P.O.
Box 5003, Coalinga, CA 93210-5003; and

D.
ORDER - 4

Eldridge Chaney Unit 7 CO-00195-9, Coalinga State Hospital, P.O.

Box 5003, Coalinga, CA 93210-5003.

DATED: April 3, 2013

Honorable B. Lynn Winmill
Chief U. S. District Judge

ORDER - 5