Frank Wells v. Gonzales

Filing 126

ORDER ADOPTING 120 Findings and Recommendations signed by District Judge Dale A. Drozd on 11/19/2021. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FRANK WELLS,

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No. 1:17-cv-01240-DAD-EPG (PC)
Plaintiff,

v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS

ROSA GONZALES,
(Doc. No. 120)
Defendant.

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Plaintiff Frank Wells is a state prisoner proceeding pro se and in forma pauperis in this

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civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United States

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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On February 18, 2021, this action settled (Doc. No. 107) and was accordingly closed

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(Doc. Nos. 110). However, the court retained jurisdiction over the action in order to enforce the

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terms of the parties’ settlement agreement. (Id.) On July 6, 2021, plaintiff filed a motion to

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enforce the settlement agreement. (Doc. No. 112.) On October 13, 2021, the assigned magistrate

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judge issued findings and recommendations, recommending that plaintiff’s motion to enforce the

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settlement agreement be denied and that jurisdiction over this matter be terminated. (Doc. No.

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120.) Those findings and recommendations were served on plaintiff and contained notice that

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any objections thereto were to be filed within fourteen (14) days from the date of service. (Id.)

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On October 29, 2021, plaintiff filed his objections, a motion to rescind the settlement agreement,
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and a motion for a certificate of appealability. (Doc. Nos. 121, 122, 123.) On November 5, 2021,

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defendant filed a consolidated opposition and response to plaintiff’s objections and motions.

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(Doc. No. 124.) On November 18, 2021, plaintiff filed a reply thereto. (Doc. No. 125.)

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With respect to plaintiff’s motion to rescind the parties’ settlement agreement1, plaintiff

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appears to misunderstand the pending findings and recommendations. Plaintiff alleges that the

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assigned magistrate judge found that defendant violated the settlement agreement, but this is not

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the case. The magistrate judge merely concluded that there was some evidence that defendant did

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not strictly comply with California Penal Code § 2085.8(a). (Doc. No. 120 at 8–9.) However, the

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magistrate judge further concluded that this potential lack of strict compliance did not breach the

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parties’ settlement agreement. (Id.) Moreover, plaintiff fails to explain how he was injured by

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any failure to strictly comply with that provision. As the pending findings and recommendations

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point out, whether defendant failed to comply with California Penal Code § 2085.8(a) was

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irrelevant to the settlement agreement. Whether or not defendant strictly complied with

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California Penal Code § 2085.8(a), plaintiff still received exactly what he was entitled to receive

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pursuant to the terms of the agreement. (Id. at 9.) Finally, plaintiff fails to cite any authority

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suggesting that a settlement agreement should be rescinded in this situation, nor is the court aware

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of any. Accordingly, the court will deny plaintiff’s motion to rescind.
With respect to plaintiff’s motion for a certificate of appealability, the court will deny

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plaintiff’s motion because plaintiff does not require permission to file an appeal in this closed §

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1983 action. If plaintiff wishes to appeal this or any other order, he only needs to file a notice of

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appeal with the court within the time required by the applicable provisions. In any such notice,

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plaintiff should identify the order(s) from which he is appealing.

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Local Rule 304, this

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court has conducted a de novo review of the case. Having carefully reviewed the entire file,

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including plaintiff’s objections, the court finds the findings and recommendations to be supported

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Plaintiff filed a separate motion to rescind, but he includes his arguments pertaining to that
motion in his objections to the pending findings and recommendations. (See Doc. Nos. 121, 122.)
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by the record and by proper analysis.

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Accordingly,

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1.

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The findings and recommendations issued on October 13, 2021 (Doc. No. 120) are
adopted in full;

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2.

Plaintiff’s motion to enforce the settlement agreement (Doc. No. 112) is denied;

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3.

Plaintiff’s motion to rescind the settlement agreement (Doc. No. 122) is denied;

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4.

Plaintiff’s motion for a certificate of appealability (Doc. No. 123) is denied as

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unnecessary; and
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The court’s retention of jurisdiction over this matter is terminated.

IT IS SO ORDERED.
Dated:

November 19, 2021
UNITED STATES DISTRICT JUDGE

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