Moncrief v. California Department of Corrections and Rehabiliation et al

Filing 107

ORDER signed by Magistrate Judge Allison Claire on 2/7/17: Plaintiff shall continue to proceed pro se in this case. Plaintiff's request for an evidentiary hearing (ECF No. 105) is denied. Defendants may file and serve a renewed motion for summary judgment within ten days of service of this order. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN PHILIP MONCRIEF,

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No. 2:12-cv-0414 MCE AC P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION, 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. On November 2, 2016, a closed hearing on plaintiff’s counsel’s motion to

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withdraw was held before the undersigned. ECF No. 99. Good cause appearing, the motion to

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withdrawal was granted and plaintiff was given sixty days to retain new counsel. ECF No. 100.

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On December 22, 2016, plaintiff’s motion for an extension of time to secure representation was

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granted in part. ECF No. 102. Plaintiff was given an additional thirty days to retain counsel and

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was advised that if another attorney had not filed a notice of appearance by February 2, 2017,

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plaintiff would proceed pro se. ECF No. 104. At this time, no attorney has filed a notice of

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appearance in this case and therefore plaintiff will proceed pro se. Plaintiff is permitted to retain

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counsel at any point in the future. However, the case will continue to move forward without

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further extension of time for plaintiff to retain counsel.
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Plaintiff has also requested an evidentiary hearing, stating that prison officials have been

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opening and inspecting his legal mail in violation of proper procedures and pursuing retaliatory

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charges of disciplinary violations. ECF No. 105. An evidentiary hearing is not warranted

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because even if officers are not following proper procedures, plaintiff does not allege that he is

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not receiving his legal mail and there is no indication that plaintiff is close to retaining counsel or

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that this failure to follow policy has somehow prevented him from obtaining counsel. Moreover,

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there is no basis for an evidentiary hearing for claims of retaliation by non-defendants.

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Accordingly, plaintiff’s request will be denied.

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Plaintiff has also filed a letter complaining of the medical treatment he is receiving at the

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institution where he is currently housed. ECF No. 106. If plaintiff wishes to pursue retaliation or

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deliberate indifference claims against prison officials at R.J. Donovan and California Health Care

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Facility, he will need to file separate lawsuits as this complaint is solely regarding plaintiff’s

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allegations that the actions of defendants Gorham, Frias, and Grounds led to plaintiff falling down

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a flight of stairs.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff shall continue to proceed pro se in this case.

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2. Plaintiff’s request for an evidentiary hearing (ECF No. 105) is denied.

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3. Defendants may file and serve a renewed motion for summary judgment within ten

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days of service of this order. In accordance with Local Rule 230(l), plaintiff shall file and serve

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an opposition or statement of non-opposition to the motion within twenty-one days of service and

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defendants may reply within seven days of the response being filed in CM/ECF.

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DATED: February 7, 2017

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