Davis v. Walker et al

Filing 200

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 motions for appo intment 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 The reference of the above- captioned cases to the assigned magistrate judge is WITHDRAWN until further order of court.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 mot ions 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. 162 , 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. Plaintiff's motion for medical evaluation filed in 2:08-cv-0593, 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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