Gray v. Johnson et al
Filing
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ORDER OVERRULING 324 Plaintiff's Objections to the Magistrate's Order Denying Motion for Appointment of an Expert; ORDER DENYING AS MOOT 338 Plaintiff's Motion to Stay; ORDER DENYING 339 Plaintiff's Motion to Resume the Proceedings; ORDER DENYING 340 Plaintiff's Motion to Appoint an Attorney; ORDER DENYING 341 Plaintiff's Motion for an Order Directing the U.S. Marshal to Serve the Sixth Amended Complaint; and ORDER DENYING 342 Plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction signed by District Judge Dale A. Drozd on 7/3/2018. (Jessen, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DANA GRAY,
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No. 1:13-cv-01473-DAD-GSA
Plaintiff,
v.
DR. V. ROMERO, et al.,
Defendants.
(Doc. Nos. 324, 338, 339, 340, 341, 342)
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ORDER FINDING OBJECTIONS TO
MAGISTRATE JUDGE’S ORDER
FRIVOLOUS, AND DENYING VARIOUS
OTHER MOTIONS
Plaintiff Dana Gray is a state prisoner proceeding pro se and in forma pauperis with this
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civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint initiating this action
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on September 12, 2013. (Doc. No. 1.) The matter was referred to a United States Magistrate
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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On March 19, 2018, the assigned magistrate judge issued an order denying plaintiff’s
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motion seeking the appointment of a medical expert on his behalf. (Doc. No. 319.) On April 2,
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2018, plaintiff filed objections to the magistrate judge’s order. (Doc. No. 324.) The magistrate
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judge construed plaintiff’s objections as a motion for reconsideration under Rule 60 and issued an
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order on April 3, 2018, denying the motion for reconsideration. (Doc. No. 325.) On April 20,
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2018, plaintiff filed objections to the magistrate judge’s order denying the motion for
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reconsideration, making it clear that she was seeking review of the magistrate judge’s order by
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the undersigned. (Doc. No. 327.)
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In reviewing all objections raised by plaintiff to the magistrate judge’s order of March 19,
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2018, which denied plaintiff the appointment of a medical expert, the undersigned declines to
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modify or set aside any part of that order because plaintiff has not demonstrated that the
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challenged order was clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a). Most
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importantly, plaintiff concedes that her initial motion, which sought appointment of an expert on
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her behalf to assist in defending against summary judgment, was filed prematurely but
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nonetheless objects to the magistrate judge having ruled on it because she filed it prematurely.
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(Doc. No. 324 at 2.) That objection is patently frivolous.
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Further, the court is in receipt of another spate of recently-filed motions from plaintiff:
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(1) a motion to stay the case pending a ruling on an interlocutory appeal (Doc. No. 338); (2) a
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motion to resume the court proceedings, presumably by lifting the stay requested by plaintiff in
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the first motion, which was never granted by the court (Doc. No. 339); (3) yet another motion for
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the appointment of counsel (Doc. No. 340); (4) a motion for the U.S. Marshal to serve plaintiff’s
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sixth amended complaint (Doc. No. 341); and (5) a request for a temporary restraining order and
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preliminary injunction preventing the transfer of the inmate who has been assisting plaintiff in
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this proceeding to another institution (Doc. No. 342). Each of these motions must be denied.
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Plaintiff’s first motion must be denied for multiple reasons. First, there was no final,
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appealable order from which plaintiff could have sought an interlocutory appeal, as recognized by
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the Ninth Circuit when it dismissed the interlocutory appeal on May 3, 2018. (See Doc. No. 331.)
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Second, the request is mooted by plaintiff’s second motion, which requests that the stay she
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sought be lifted, despite the fact that it was never granted. That second motion must itself be
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denied as moot since no stay was ever imposed. In relation to the third motion, plaintiff herself
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notes that the exact same request has already been denied “over 10 times” in this proceeding to
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date. (See Doc. No. 340 at 1.) Without counting the exact number, plaintiff is generally correct:
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she has requested and been denied the appointment of counsel on myriad occasions in this case.
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(See, e.g., Doc. Nos. 14, 37, 54, 73, 110, 156, 202, 267.) The court will not revisit the issue again
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here. The fourth motion must be denied because service of the sixth amended complaint is not
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yet appropriate since the findings and recommendations screening this complaint have not yet
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been adopted by the undersigned and remain pending. (See Doc. No. 328.) Finally, the fifth
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motion will be denied because plaintiff has no right to be assisted by a particular inmate in this
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proceeding. See Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (“Nor does [plaintiff]
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have any right to the services of a particular writ writer.”); Lewis v. Adams, No. 1:10–CV–00266–
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OWW–DLB PC, 2010 WL 5287673, at *4 (E.D. Cal. Dec. 17, 2010) (finding plaintiff had failed
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to “allege sufficient facts to indicate that he had a constitutional right to receive legal assistance
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from a particular jailhouse lawyer”), findings and recommendations adopted, 2011 WL 841388;
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Barno v. Hernandez, No. 08cv2439-WQH (BGS), 2010 WL 2179589, at *1 (S.D. Cal. May 27,
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2010) (“[W]hile Petitioner may have the benefit of currently being assisted by a fellow inmate,
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Petitioner represents himself and does not have a right to the assistance of a particular inmate.”).
At least four of these newly-filed motions are obviously frivolous, as are the objections
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plaintiff filed to the denial of her motion to appoint an expert. Plaintiff has been previously
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warned not to file repetitive and groundless motions, and cautioned that continuing to do so may
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result in the imposition of sanctions, including potentially terminating sanctions. (See Doc. No.
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293 at 3–4.) Plaintiff is hereby directed to immediately cease submitting frivolous motions,
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objections, and other filings to this court. Any further failure to heed this admonition by
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plaintiff will result in the imposition of sanctions, most likely terminating sanctions, with no
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further notice being provided. This is especially the case if such a failure occurs prior to the
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undersigned’s order on the now-pending findings and recommendations concerning the
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screening of the sixth amended complaint. Plaintiff should consider this her final warning
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in this regard.
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For the reasons given above:
1. Plaintiff’s objections to the magistrate judge’s order denying her motion for appointment
of an expert (Doc. No. 324) are overruled;
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2. Plaintiff’s motion to stay this matter (Doc. No. 338) is denied as moot;
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3. Plaintiff’s motion to resume the proceedings (Doc. No. 339) is denied as moot;
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4. Plaintiff’s motion to appoint an attorney (Doc. No. 340) is denied;
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5. Plaintiff’s motion for an order directing the U.S. Marshal to serve the sixth amended
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complaint (Doc. No. 341) is denied;
6. Plaintiff’s motion for a temporary restraining order and preliminary injunction (Doc. No.
342) is denied; and
7. Plaintiff is ordered to immediately cease filing any further frivolous motions, orders, or
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any other filings in this proceeding. Plaintiff’s failure to comply with this order will result
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in sanctions, which will likely include dismissal of this action.
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IT IS SO ORDERED.
Dated:
July 3, 2018
UNITED STATES DISTRICT JUDGE
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