Woods v. Carey, et al
Filing
384
ORDER signed by Magistrate Judge Allison Claire on 12/07/15 ordering plaintiff's motion for reconsideration 377 is construed as plaintiff's objections to the 11/18/15 order and findings and recommendations 374 . Defendant may respond wi thin 14 days of the filing of this order. Plaintiff's request to compel production of his paperwork 378 is denied. Plaintiff's motion for a subpoena 379 is denied. Plaintiff's motion to appoint counsel 380 is denied. Plaintiff's request to file a motion for preliminary injunction 380 is denied. Plaintiff's motion for leave to file a notice of appeal 381 is denied. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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EARNEST CASSELL WOODS, II,
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No. 2:04-cv-1225 MCE AC P
Plaintiff,
v.
ORDER
TOM L. CAREY, et al.,
Defendants.
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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42
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U.S.C. § 1983. Currently before the court are plaintiff’s motions for reconsideration (ECF No.
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377), to compel (ECF No. 378), for subpoena (ECF No. 379), to appoint counsel (ECF No. 380),
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and to file a notice of appeal (ECF No. 381).
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Plaintiff has filed a motion which he identifies as being brought pursuant to Federal Rule
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of Civil Procedure 60(b). ECF No. 377. In the motion, plaintiff seeks reconsideration of the
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findings and recommendations that recommended enforcement of the settlement agreement in this
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case. Id. These findings and recommendations have yet to be adopted by the district judge,
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making a Rule 60 motion premature. Plaintiff’s motion shall instead be construed as objections
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to the November 18, 2015 findings and recommendations. Defendant may file a response within
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fourteen days of the filing of this order.
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Plaintiff has also filed a motion to compel defendant to issue legal property. ECF No.
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378. In this motion, plaintiff alleges that his legal papers have been confiscated as a disciplinary
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measure and that he has been prevented from filing opposition papers with the court. Plaintiff
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offers no evidence that defendant was responsible for the alleged confiscation or that he cannot
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gain access to his paperwork though a request to the appropriate prison staff. To the extent he
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alleges that his paperwork has been lost, the court cannot order production of items that cannot be
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located. With respect to the claim that he has been prevented from filing opposition papers,
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plaintiff does not identify what or when he has been prevented from filing. Plaintiff’s motion will
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be denied.
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Plaintiff next requests to subpoena “the federal and state officers who were at the
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settlement conference” so that they can “‘testify’ to plaintiff’s ‘duress’ claims that he made to the
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court during the conference, even though he never used the term duress.” ECF No. 379. As the
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court expalined when it denied plaintiff’s request for an evidentiary hearing, an evidentiary
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hearing was not necessary in this case because the material terms of the oral settlement agreement
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and the parties’ assent was on the record and the undersigned facilitated the settlement
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conference. ECF No. 374 at 4-5. Moreover, plaintiff was given an opportunity to explain, on the
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record, why he believed that he was under duress. Recording of November 4, 2015 hearing at
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1:36:09-36:07, 1:42:02-43:18. The court finds no grounds to subpoena unidentified individuals to
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provide unspecified testimony that would be, at best, duplicative of plaintiff’s testimony.
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Plaintiff’s motion to subpoena witnesses will be denied.
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Plaintiff’s next motion is for appointment of counsel. ECF No. 380. The United States
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Supreme Court has ruled that district courts lack authority to require counsel to represent indigent
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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
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certain exceptional circumstances, the district court may request the voluntary assistance of
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counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.
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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). “When determining
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whether ‘exceptional circumstances’ exist, a court must consider ‘the likelihood of success on the
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merits as well as the ability of the [plaintiff] to articulate his claims pro se in light of the
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complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
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(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden of demonstrating
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exceptional circumstances is on the plaintiff. Id.
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Plaintiff argues that exceptional circumstances exist in this case because prison officials
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refuse to issue his legal property and prevented him from filing unspecified papers. In denying
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plaintiff’s previous request for counsel the court found that plaintiff’s lack of legal documents
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does not constitute exceptional circumstances and that plaintiff has already demonstrated his
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ability to successfully represent himself at trial in this case. ECF No. 374 at 6. Plaintiff has not
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presented any additional information or new circumstances that would alter this decision.
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Plaintiff’s motion for counsel also includes a request for leave to file a motion for unspecified
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injunctive and declarative relief.1 ECF No. 380. Since the undersigned has recommended
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enforcement of the settlement agreement and dismissal of the case, plaintiff’s requests for counsel
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and for leave to file a motion for injunctive and declaratory relief will be denied.
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Finally, plaintiff has filed a document entitled “Notice of Appeal” in which he requests
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leave to file his notice of appeal. ECF No. 381. Plaintiff has previously indicated that he intends
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to appeal a number of the court’s decisions and his request for leave does not identify which
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orders he will be appealing. Furthermore, the November 18, 2015 findings and recommendations
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have not yet been adopted by the district judge and judgment has not been entered, so there is no
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final order to appeal. Plaintiff’s request for leave to file a notice of appeal will be denied because
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it does not specify the orders plaintiff seeks to appeal and it is premature. In the event the
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recommendations to enforce the settlement agreement and dismiss the case are adopted by the
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district judge, plaintiff may appeal that decision once the district judge issues an order adopting
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the November 18, 2015 findings and recommendations and judgment is entered.
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Summary
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Plaintiff’s motion for reconsideration has been filed too early because there is no final
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order to reconider. The motion is interpreted as objections to the November 18, 2015 findings
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It appears that the relief sought is likely related to the alleged deprivation of paperwork.
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and recommendations that recommend enforcement of the settlement agreement and dismissal of
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the case.
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Plaintiff’s request for his paperwork is denied because he does not show that defendant
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had anything to do with his paperwork and this case has been recommended for dismissal. He
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also does not show that he has asked the proper officers, and, to the extent he claims his papers
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are lost, the court cannot order production of lost documents.
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Plaintiff’s motion for a subpoena is denied because an evidentiary hearing regarding the
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enforceability of the settlement agreement was not needed in this case, because the undersigned
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oversaw the settlement conference. Also, plaintiff does not identify who he wants to subpoena or
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what they will say.
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Plaintiff’s motion for counsel is denied because his alleged inability to access his
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paperwork is not an exceptional circumstance and because this case has been recommended for
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dismissal.
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Plaintiff’s motion for leave to file a motion for preliminary injunction is denied because
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plaintiff does not identify what he wants and the undersigned has recommended that this case be
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dismissed.
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Plaintiff’s motion for leave to file a notice of appeal is denied because it does not state
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which orders plaintiff wants to appeal and it is too early to file a notice of appeal. Plaintiff may
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appeal the enforcement of the settlement conference if and when the district judge adopts the
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November 18, 2015 findings and recommendations and dismisses the case and enters judgment.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for reconsideration (ECF No. 377) is construed as plaintiff’s
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objections to the November 18, 2015 order and findings and recommendations (ECF No. 374).
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Defendant may respond within fourteen days of the filing of this order.
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2. Plaintiff’s request to compel production of his paperwork (ECF No. 378) is denied.
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3. Plaintiff’s motion for a subpoena (ECF No. 379) is denied.
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4. Plaintiff’s motion to appoint counsel (ECF No. 380) is denied.
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5. Plaintiff’s request to file a motion for preliminary injunction (ECF No. 380) is denied.
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6. Plaintiff’s motion for leave to file a notice of appeal (ECF NO. 381) is denied.
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DATED: December 7, 2015
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