Edward Juliano Mullins v. Wenciker et al

Filing 149

ORDER GRANTING 145 Defendant's Motion to Modify Scheduling Order and DENYING 147 Plaintiff's Motion to Alter or Amend Judgement, signed by Magistrate Judge Dennis L. Beck on 10/1/2010. (DEPOSITION DEADLINE: OCTOBER 20, 2010) (Martin, S)

(PC) Edward Juliano Mullins v. Wenciker et al

Doc. 149

1 2 3 4 5 6 7 8 EDWARD J. MULLINS, 9 Plaintiff, 10 v. 11 R. WENCICKER, 12 Defendant. 13 14 / 15 16 Plaintiff Edward J. Mullins ("Plaintiff") is a prisoner in the custody of the California (DOC. 147) ORDER DENYING PLAINTIFF'S MOTION TO ALTER OR AMEND JUDGMENT DEPOSITION DEADLINE: OCTOBER 20, 2010 ORDER GRANTING DEFENDANT'S MOTION TO MODIFY SCHEDULING ORDER (DOC. 145) CASE NO. 1:07-CV-00108-LJO-DLB PC

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

17 Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on his 19 second amended complaint against Defendant Wencicker for retaliation in violation of the First 20 Amendment. Pending before the Court are: 1) Defendant's motion to modify the scheduling 21 order, filed September 17, 2010; and 2) Plaintiff's motion to alter or amend the judgment, filed 22 September 23, 2010. 23 I. 24 Defendant's Motion Defendant seeks to modify the scheduling order for the limited purpose of deposing

25 Plaintiff. Defendant had previously sought an extension of time and received a date of 26 September 20, 2010 to conduct the deposition. However, because Plaintiff was subsequently 27 transferred to Lancaster State Prison, and lacked certain documents for the deposition date of 28 September 20, Defendant moves for a thirty-day extension of time. 1
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Motions to modify the scheduling order require a showing of good cause. Fed. R. Civ. P.

2 16(b)(4). Good cause appearing, the Court HEREBY ORDERS that Defendant's motion to 3 modify the scheduling order for purposes of conducting a deposition, filed September 17, 2010, 4 is GRANTED. Defendant is granted up to and including October 20, 2010 in which to depose 5 Plaintiff regarding this action. 6 II. 7 Plaintiff's Motion Plaintiff moves to alter the Court's judgment denying Plaintiff appointment of counsel.

8 Plaintiff refers to the Court's September 14, 2010 Order denying Plaintiff appointment of 9 counsel. Plaintiff contended, inter alia, that counsel was necessary during this deposition to 10 protect Plaintiff from self-incrimination. The Court found this contention vague and insufficient 11 to justify appointment of counsel. 12 Plaintiff now contends that he has pertinent material which indicates that there are

13 underlying dynamics and invisible factors in this action. Plaintiff further contends that he is 14 being denied access to the courts at Lancaster State Prison. Plaintiff seeks an alteration of the 15 Court's order and for a grant of Plaintiff's request for counsel. 16 As to the denial of access to the courts, this Court lacks jurisdiction. Federal courts are

17 courts of limited jurisdiction, and as a preliminary matter, the court must have before it an actual 18 case or controversy. City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983); Valley Forge 19 Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471 20 (1982). If the court does not have an actual case or controversy before it, it has no power to hear 21 the matter in question. Lyons, 461 U.S. at 102. Thus, "[a] federal court may issue an injunction 22 [only] if it has personal jurisdiction over the parties and subject matter jurisdiction over the 23 claim; it may not attempt to determine the rights of persons not before the court." Zepeda v. 24 United States Immigration Serv., 753 F.2d 719, 727 (9th Cir. 1985). Lancaster State Prison is 25 not a defendant in this action, and thus the Court has no jurisdiction over parties not before it. 26 As to the appointment of counsel, Plaintiff fails to submit any evidence in support.

27 Applications for reconsideration require submission of what new or different facts or 28 circumstances are claimed to exist. See L. R. 230(j). Plaintiff's allegations are unsupported, and 2

1 thus there is no basis for the Court to appoint counsel for Plaintiff or reconsider its previous 2 order. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Based on the foregoing, Plaintiff's motion, filed September 23, 2010, is denied. IT IS SO ORDERED. Dated: 3b142a

October 1, 2010

/s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE