Davis v. Walker et al

Filing 141

ORDER signed by District Judge Kimberly J. Mueller on 6/19/17 ORDERING that Plaintiff's motions for appointment of counsel filed in Case No. 2:08-cv-0593 KJM DB, ECF Nos. 111 , 112 , 116 , 134 , and 137 , are DENIED. Plaintiff's m otions for appointment of counsel filed in Case No. 2:10-cv-2139 KJM DB, ECF Nos. 168, 169, 178 and 195, are DENIED. The reference of the above- captioned cases to the assigned magistrate judge is WITHDRAWN until further order of court. Plaintiff 's motions regarding the authority of the magistrate judge filed in 2:08-cv-0593, ECF Nos. 106 , 117 and 124 , are DENIED. Plaintiff's motions regarding the authority of the assigned magistrate judge filed in 2:10-2139, ECF Nos. 1 62, 173 and 182, are DENIED. Plaintiff's motions for reconsideration filed in 2:08-cv-0593, ECF Nos. 105 and 119 , are DENIED. Plaintiff's motions for reconsideration filed in 2:10-cv-2139, ECF Nos. 161, 163 and 175, are DENIED. Pla intiff's motion for medical evaluation filed in Case No. 2:08-cv-0593 KJM DB, ECF No. 133 , is DENIED. Plaintiff's motion for medical evaluation filed in 2:10-cv-2139, ECF No. 192, is DENIED. Plaintiff's guardian ad litem, Ronnie Tolliver, is directed to complete and return the attached notice to the court by mail within 21 days from the date of this order. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNARD LEE DAVIS,

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Plaintiff,

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No. 2:08-cv-0593 KJM DB P

v.
JAMES WALKER, et al.,

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Defendants.

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KENNARD LEE DAVIS,

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Plaintiff,

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No. 2:10-cv-2139 KJM DB P

v.
JAMES WALKER, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding in forma pauperis with civil rights actions under 42

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U.S.C. § 1983. Plaintiff is proceeding in both actions through a guardian ad litem, Ronnie

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Tolliver, who was appointed in October 2014. See ECF Nos. 40; 81.1 Since then, plaintiff has

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Throughout this order, unless otherwise noted, citations to documents filed in the court’s
Electronic Case Filing (ECF) system are first to the record in Case No. 2:08-cv-0593 KJM DB
and second to the record in Case No. 2:10-cv-2139 KJM DB.
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filed several pro se motions in each of the above actions; none of the motions has been presented

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to the court by plaintiff’s guardian ad litem.2 Following appointment of the guardian ad litem,

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plaintiff has twice been instructed that he may not file documents on his own behalf. See ECF

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Nos. 88, 101; 144, 157. Those orders are confirmed. See Fed. R. Civ. P. 17(c)(2) ; see also

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AT&T Mobility, LLC v. Yeager, 143 F.Supp.3d 1042 (E.D. Cal. 2015).

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Since September 22, 2016, plaintiff has filed several new pro se motions for appointment

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of counsel in each of these cases. ECF Nos. 111, 112, 116, 134, 137; 168, 169, 178, 195. The

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court has twice appointed counsel for plaintiff in these actions, and twice subsequently granted

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motions to withdraw. ECF Nos. 45, 71; 96, 127. As noted, plaintiff is now proceeding through a

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guardian ad litem and all motions for court orders on plaintiff’s behalf must be presented through

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the guardian ad litem. For this reason, plaintiff’s pro se motions for appointment of counsel will

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be denied.

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Plaintiff also has filed several pro se motions concerning the authority of the magistrate

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judge to preside over this action. ECF Nos. 106, 117, 124; 162, 173, 182. Because these motions

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have not been presented through the guardian ad litem, plaintiff’s pro se motions concerning the

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authority of the magistrate judge will be denied. However, in view of this court’s decision to file

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an answer in response to an order from the Ninth Circuit Court of Appeals, see ECF Nos. 126;

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185, and the Circuit court’s March 2, 2017 order, ECF Nos. 131;190, the court will withdraw the

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reference to the magistrate judge pending compliance with this court’s May 18, 2017 order, ECF

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Nos. 132; 191, and until further order of the court.

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Plaintiff has filed several pro se motions seeking reconsideration of various orders entered

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in these actions. ECF Nos. 105, 119; 161, 163, 175. These motions also will be denied as not

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presented through the guardian ad litem.

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On May 18, 2017, this court issued an order directing plaintiff’s mental health clinician to

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file a report on the current status of plaintiff’s mental health and referred the matter to the court’s

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These motions filed by plaintiff will be referred to as pro se motions. Mr. Tolliver is not a
lawyer; the court will, as appropriate, consider appointment of counsel for Mr. Tolliver at a
subsequent stage of these proceedings. See Yeager, infra.
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Pro Bono Coordinator to confirm arrangements for appointment of a medical expert as provided

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by Federal Rule of Evidence 706. ECF Nos. 132; 191. This order was issued as part of the

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court’s efforts to take all available steps to move these cases forward as required by order of the

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Ninth Circuit. ECF Nos. 35; 75. On May 30, 2017, plaintiff filed objections to that order. ECF

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Nos. 135; 193. Plaintiff’s objections are overruled.

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On May 25, 2017, plaintiff filed a pro se motion for a medical evaluation. ECF Nos. 133;

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192. In accordance with the May 18, 2017 order, the court anticipates appointment of a medical

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expert to conduct an independent medical examination of plaintiff. Plaintiff’s pro se motion,

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again filed in violation of prior court orders, will be denied.

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On June 1, 2017, defendants filed in each case requests for an extension of time to

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respond to the court’s May 18, 2017 order. ECF Nos. 136; 194. The court has granted those

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requests by separate orders. ECF Nos. 139, 196. Defendants shall continue to keep the court

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informed of any change in plaintiff’s housing. See ECF Nos. 132; 191.

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Finally, following receipt of the information required by the court’s May 18, 2017 order,

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appointment of an independent medical examiner, and receipt of a report from that examiner, the

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court will determine what further steps are required. Plaintiff’s guardian ad litem, Mr. Tolliver, is

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informed that his participation is required by court order and will be necessary to a full and just

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disposition of this action. By this order, the court will direct Mr. Tolliver to complete and return

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the attached notice, confirming that he has received this order and confirming his current address

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of record by writing it in the space provided on the notice.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1.

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DB, ECF Nos. 111, 112, 116, 134, and 137, are denied;

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2. Plaintiff’s motions for appointment of counsel filed in Case No. 2:10-cv-2139 KJM

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DB, ECF Nos. 168, 169, 178 and 195, are denied;

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3. The reference of the above-captioned cases to the assigned magistrate judge is

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Plaintiff’s motions for appointment of counsel filed in Case No. 2:08-cv-0593 KJM

withdrawn until further order of court;
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4. Plaintiff’s motions regarding the authority of the magistrate judge filed in Case No.

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2:08-cv-0593 KJM DB, ECF Nos. 106, 117 and 124, are denied;
5. Plaintiff’s motions regarding the authority of the assigned magistrate judge filed in

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Case No. 2:10-2139 KJM DB, ECF Nos. 162, 173 and 182, are denied;
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Plaintiff’s motions for reconsideration filed in Case No. 2:08-cv-0593, ECF Nos. 105
and 119, are denied;

7. Plaintiff’s motions for reconsideration filed in Case No. 2:10-cv-2139 KJM DB, ECF
Nos. 161, 163 and 175, are denied;
8. Plaintiff’s motion for medical evaluation filed in Case No. 2:08-cv-0593 KJM DB,
ECF No. 133, is denied;
9. Plaintiff’s motion for medical evaluation filed in Case No. 2:10-cv-2139 KJM DB,
ECF No. 192, is denied; and
10. Plaintiff’s guardian ad litem, Ronnie Tolliver, is directed to complete and return the
attached notice to the court by mail within twenty-one days from the date of this order.
DATED: June 19, 2017.

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UNITED STATES DISTRICT JUDGE

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KENNARD LEE DAVIS,

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No. 2:08-cv-0593 KJM DB P

Plaintiff,
v.
JAMES WALKER, et al.,

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Defendants.

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KENNARD LEE DAVIS,

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No. 2:10-cv-2139 KJM DB P

Plaintiff,
v.
JAMES WALKER, et al.,

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NOTICE OF SUBMISSION

Defendants.

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I, Ronnie Tolliver, confirm that I have received the district court’s order. I further
confirm that my address of record is:

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DATED:
___________________
Guardian Ad Litem for
Plaintiff Kennard Davis

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