Dews v. State Water System I.D. #1510802, et al.

Filing 26

ORDER Denying Motions 23 , 24 , signed by Chief Judge Ralph R. Beistline on 07/30/14. IFP Status Revoked. (Gonzalez, R)

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
CLARENCE LEON DEWS,
Case No. 1:12-cv-01398-RRB
Plaintiff,
ORDER DENYING MOTIONS
AT DOCKETS 23, 24

vs.
STATE WATER SYSTEM, I.D.
#1510802, ET AL.,
Defendants.

I. PENDING MOTIONS
At Docket 23 Plaintiff Clarence Leon Dews, a state prisoner appearing pro se, filed
a document that appears to be a request to direct the California Department of Corrections
and Rehabilitation (“CDCR”) to treat pro se attorney correspondence as legal mail and
issue a summons in this case. At Docket 24 Dews filed a document, when considered
together with the document filed at Docket 25, appears to be a motion under Federal Rule
of Civil Procedure 60(b) or, in the alternative, a request for a writ of error coram nobis.1

1

As presented, it is difficult to ascertain precisely the relief Dews requests or
the basis for it. Generally, documents filed by a pro se prisoner are to be liberally
construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620
F.3d 952, 958 (9th Cir. 2010). The Court has applied that rule in ruling on the matters
presented.
ORDER DENYING MOTIONS AT DOCKETS 23, 24
Dews v. Chen, 1:12-cv-1398-RRB – 1

The record reflects the following actions in chronological order:
May 9, 2013 – the Court entered an order dismissing the complaint with leave to
amend.2
June 19, 2013 – Because Dews did not file an amended complaint within the time
allowed, after denying Dew’s motion to extend the time to file an amended complaint,3 the
Court entered its judgment dismissing the case without prejudice. 4
June 6, 2014 – Dews moved for an extension of time of one year within which to
present a petition for a writ of error coram nobis.5
June 10, 2014 – The Court denied Dews’ request for an extension.6
July 10, 2014 – The date the documents filed at Dockets 23 and 25 appear to have
been signed.
July 11, 2014 – The date the document filed at Docket 24 appears to have been
signed.
II. DISCUSSION
A.

Motion at Docket 23

In this motion Dews contends that he is a “jailhouse lawyer” entitled to represent
nine additional named inmates. Although not entirely clear, Dews appears to challenge the
2

Docket 16.

3

Docket 19.

4

Docket 20.

5

Docket 21.

6

Docket 22,

ORDER DENYING MOTIONS AT DOCKETS 23, 24
Dews v. Chen, 1:12-cv-1398-RRB – 2

prior order of this Court denying Dews’ standing to serve as legal representative for
additional inmates.7 Also attached to the motion are a summons that appears to be
directed to the California Attorney General and various CDCR officials and a subpoena that
appears to be directed to various CDCR officials.
As the Court previously ruled, although Dews styles himself as a “jailhouse lawyer,”
he is not admitted to the bar as an attorney; therefore, although he is permitted to
represent himself before this Court, he is not qualified to represent any other person before
it. Dews has cited no authority that supports his contention that he is so qualified.
Therefore, this Court has no basis upon which to revisit and reverse its prior ruling.
Because there is no pending action before this Court, there is no basis upon which
to issue either a summons or a subpoena. To the extent that the document captioned
“Subpoena in a Civil Case” purports to be notice of appeal, it is untimely and this Court
lacks authority to extend the time to appeal. 8
B.

Motion at Docket 24

Dews contends that this Court made an mistake of law when it dismissed his
complaint on the basis of failure to exhaust his administrative remedies without first
requiring the Defendants to plead exhaustion as an affirmative defense.
//
//

7

Docket 13.

8

Fed. R. App. P. 4(a)(5).

ORDER DENYING MOTIONS AT DOCKETS 23, 24
Dews v. Chen, 1:12-cv-1398-RRB – 3

1. Rule 60(b)
In this circuit a district court may correct an error of law under Rule 60(b)(1).9
Applying the “prison mail-box rule,”10 the Court assumes the motions were filed at the
earliest on July 10, 2014. Because the motion was filed more than one year after judgment
was entered, to the extent it seeks relief under Rule 60(b), it is untimely.11
2. Coram Nobis
“The writ of coram nobis is an ancient common-law remedy designed to correct
errors of fact.”12 Modernly, the use of the writ has been expanded and is broader than its
common-law predecessor. Coram nobis is now available to address a fundamental error
as opposed to a technical error. The use of coram nobis is, however, limited “to
extraordinary cases presenting circumstances compelling its use to achieve justice.”13 In
addition, coram nobis does not lie where an alternative remedy is available.14

9

See Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982); Gila
River Ranch, Inc. v. United States, 368 F.2d 354, 357 (9th Cir. 1966).
10

Under the “prison mailbox rule,” a paper or pleading filed by a prisoner is
deemed filed when the paper or pleading is handed to the appropriate prison official for
mailing. Houston v. Lack, 487 U.S. 266, 276 (1988). In the absence of any contrary
evidence, this Court normally assumes that the Petition was handed to the appropriate
prison official on the date that it bears. See Porter v. Ollison, 620 F.3d 952, 958 (9th Cir.
2010).
11

Fed. R. Civ. P. 60(c)(1).

12

United States v. Denedo, 556 U.S. 904, 910 (2009) (internal quotation marks
and citation omitted).
13

Id. at 911 (internal quotation marks and citation omitted).

14

Id.

ORDER DENYING MOTIONS AT DOCKETS 23, 24
Dews v. Chen, 1:12-cv-1398-RRB – 4

As applied to this case, Dews appears to be attempting to utilize coram nobis as a
substitute for his untimely Rule 60(b) motion. Even assuming that it may be used in that
manner, Dews has failed to establish a basis for relief. That is, even if this Court were to
address the motion on its merits, Dews would not prevail. The thrust of Dews argument is
that the Court erred in dismissing for failure to exhaust during the screening stage is
contrary to Circuit Law. In so doing, however, the Court granted Dews leave to file an
amended complaint with the provision that Dews affirmatively plead exhaustion or that he
was excused from exhausting his administrative remedies.15 Dews failed to file an
amended complaint within the time allowed. In addition, in the event that Dews either
subsequently exhausted his administrative remedies or was prevent from so doing,
because the dismissal to the extent it was on that basis was without prejudice.
Consequently, Dews may file a new action.
Finally, this Court notes that in dismissing the complaint, except for the Warden of
Kern Valley State Prison, dismissal was without leave to amend on grounds other than the
failure to exhaust administrative remedies. Dews does not address that aspect of the
dismissal order.
There being no legal or factual basis for granting Dews relief under either Rule 60(b)
or coram nobis, dismissal of his complaint must stand.
//
//

15

Docket 16.

ORDER DENYING MOTIONS AT DOCKETS 23, 24
Dews v. Chen, 1:12-cv-1398-RRB – 5

III. ORDER
Accordingly, for the reasons set forth above, the motions at Dockets 23 and 24 are
DENIED.
This Court, having fully considered the matter finds that reasonable jurists could not
disagree with this Court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed further.
Accordingly, any further proceedings, whether before this Court or on appeal, would be
frivolous or taken in bad faith.16 Accordingly, Plaintiff’s in forma pauperis status is hereby
REVOKED.
IT IS SO ORDERED this 30th day of July, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

16

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091,
1092 (9th Cir. 2002).
ORDER DENYING MOTIONS AT DOCKETS 23, 24
Dews v. Chen, 1:12-cv-1398-RRB – 6