Harris v. Rios et al

Filing 136

ORDER denying request for court order re 135 signed by Magistrate Judge Michael J. Seng on 6/8/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DONTE ROLANDO HARRIS ,

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Plaintiff,

CASE NO. 1:09-cv-00781-MJS (PC)
ORDER DENYING
COURT ORDER

REQUEST

FOR

v.
(ECF No. 135)
H.A. RIOS, et al.,

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Defendants.

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Plaintiff is a federal prisoner proceeding pro se in this civil rights action filed April

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27, 2009 pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388 (1971). The action proceeds on Plaintiff’s First Amendment

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claim against Defendants Gonzaga, Cobb, Zaragoza, and Valero for delay in delivery of

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incoming seized mail; his First Amendment claim against Defendant Cobb for

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interception and seizure of outgoing mail; and his Fifth Amendment due process claim

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against Defendants Estrada, Cobb, Valero, and Zaragoza for failing to provide notice his

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mail was seized.

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The matter previously was set for trial on June 2, 2015. (ECF No. 116.) However,

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during the May 27, 2015 telephonic trial confirmation hearing, defense counsel

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requested a continuance due to the unavailability of Defendant Gonzaga. Plaintiff raised

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the possibility of dismissing his claims against Defendant Gonzaga. Defense counsel did

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not oppose a possible dismissal but nonetheless maintained his request for a

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continuance because he believed Defendant Gonzaga is a necessary witness at trial.

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Defendant’s request was granted and trial was continued to August 20, 2015. (ECF No.

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133.)

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On June 1, 2015, Plaintiff filed a letter with the Court, referencing his offer to

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dismiss Defendant Gonzaga and asking that defense counsel be directed to

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communicate the offer directly to Defendant. (ECF No. 135.) Plaintiff’s request appears

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to be motivated by his desire to expedite trial in this matter, and to avoid further transit

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from and to Fresno County for trial.

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Where a defendant has appeared in the action by filing an answer, Plaintiff may

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dismiss the action only by stipulation signed by all parties who have appeared or by

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court order on terms the Court deems proper. Fed. R. Civ. P. 41(a). Plaintiff may seek

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such a stipulation from Defendant Gonzaga, through counsel, at any time. However, the

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Court cannot require Defendant Gonzaga to agree to such a stipulation. Further, based

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on defense counsel’s representation that Defendant Gonzaga is a necessary witness,

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the Court is disinclined to revisit its decision to continue trial to August 20, 2015.

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Accordingly, Plaintiff’s request for further Court action with regard to his offer of
dismissal is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

June 8, 2015

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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