Jesus Estevez v. A. Hedgpeth et al

Filing 97

ORDER, signed by District Judge Roslyn O. Silver on 9/1/11: Plaintiff's Motion 69 is DENIED with leave to refile; Plaintiff's Motions 77 , 78 , 92 , and 95 are DENIED. (Hellings, J)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 Jesus Estevez, Plaintiff, 10 11 vs. 12 A. Hedgpeth; et. al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV-07-1553-ROS (PC) ORDER 15 16 This order resolves the pending motion for judicial notice, motion to compel, motion 17 to appoint counsel, request for a court order to allow Plaintiff access to copying services and 18 legal envelopes, and application to submit continuing evidence.1 19 Plaintiff’s Motion to Compel 20 Plaintiff moves to compel Defendants to respond to his requests for admission. (Doc. 21 77). Despite the fact that Plaintiff did not timely serve the requests for admission, 22 Defendants agreed to respond. (Doc. 80). In their responses, despite compound requests for 23 admission, Defendants separated the requests and addressed each one. Plaintiff’s untimely 24 motion to compel will be denied. 25 26 27 28 1 Defendants’ motion for summary judgment is still pending. 1 Plaintiff’s Motion to Appoint Counsel 2 For the reasons stated in the Court’s October 22, 2010 order (Doc. 63), Plaintiff’s 3 motion to appoint counsel (Doc. 78) will be denied. The Court does not find exceptional 4 circumstances requiring appointment of counsel. See Rand v. Rowland, 113 F.3d 1520, 1525 5 (9th Cir. 1997). 6 Plaintiff’s Request for a Court Order for Copying Services and Legal Envelopes 7 For the reasons stated in the Court’s October 22, 2010 order (Doc. 63), Plaintiff’s 8 request for a court order to allow Plaintiff access to copying services and legal envelopes 9 (Doc. 92) will be denied because Plaintiff has not shown he has suffered an actual injury or 10 that he is likely to suffer irreparable harm. Plaintiff has filed numerous documents in this 11 case, and has not established the alleged denial of copying services or envelopes has 12 obstructed his access to the courts. 13 Plaintiff’s Application to Submit Continuing Evidence 14 Plaintiff’s application to submit continuing evidence (Doc. 95) will be denied because 15 it is an untimely sur-reply and because it seeks to admit irrelevant documents. Aggers v. 16 Tyson, 2011 U.S. Dist. Lexis 63720, *1 (E.D. Cal. 2011) (“The Federal Rules of Civil 17 Procedure and the Local Rules of this Court do not contemplate the filing of sur-replies. See 18 Local Rule 230 . . . .”). 19 Plaintiff’s Motion for Judicial Notice 20 Plaintiff’s motion for judicial notice (Doc. 69) will be denied because he has not 21 explained the reason he seeks judicial notice and, therefore, the has not shown the documents 22 are relevant. The party requesting judicial notice bears the burden of persuading the court 23 judicial notice is proper. In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 (Bkrtcy. E.D. 24 Cal. 1992); see also United States v. S. Cal. Edison Co., 300 F. Supp. 2d 964, 970 (E.D. Cal. 25 2004) (conclusions of law, conclusory allegations, unreasonable inferences, or unwarranted 26 deductions of fact need not be accepted). 27 Plaintiff did not set forth his argument until his reply brief. His motion simply lists 28 the documents and makes a blanket statement that they are relevant. Plaintiff’s arguments -2- 1 rely on allegations that Defendants refused to admit to the authenticity of the documents at 2 issue, and Plaintiff seeks to adopt factual holdings and findings. However, even when the 3 Court takes judicial notice of documents, it “does not adopt their factual findings or holdings; 4 it simply acknowledges their existence and contents.” California ex rel. Lockyer v. Mirant 5 Corp., 266 F.Supp.2d 1046, 1053 (N.D. Cal. 2003). Arguments must be made in the initial 6 motion to allow the opposing party an opportunity to respond. Defendants were deprived of 7 the opportunity to address Plaintiff’s argument for judicial notice because Plaintiff did not 8 set forth his argument until his reply. Plaintiff’s motion for judicial notice will be denied 9 with leave to refile. 10 Accordingly, 11 IT IS ORDERED Plaintiff’s motion (Doc. 69) is DENIED with leave to refile. 12 IT IS ORDERED Plaintiff’s motion (Doc. 77) is DENIED. 13 IT IS ORDERED Plaintiff’s motion (Doc. 78) is DENIED. 14 IT IS ORDERED Plaintiff’s request (Doc. 92) is DENIED. 15 IT IS ORDERED Plaintiff’s application (Doc. 95) is DENIED. 16 DATED this 1st day of September, 2011. 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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