Jones v. Virga et al
ORDER signed by Magistrate Judge Kendall J. Newman on 12/29/14 DENYING 40 Motion.(Dillon, M)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
HENRY A. JONES,
No. 2:12-cv-2695 MCE KJN P
G. WHITTED, et al.,
Plaintiff is a state prisoner proceeding through counsel.1 By stipulation and order, this
action was terminated on June 30, 2014. (ECF No. 37.) On October 10, 2014, plaintiff filed a
pro se request for court order, seeking to contest an issue allegedly resolved by the settlement in
this action. (ECF No. 38.) On November 14, 2014, plaintiff’s pro se motion was denied, and
plaintiff was instructed that if he was seeking to enforce or modify the settlement, he must file
such motion before the settlement judge, and it must be filed through counsel.
On December 10, 2014, plaintiff filed a pro se document entitled, “Modify the
settlement,” in which he claims that he feels that the settlement agreement was breached because
By order filed April 30, 2014, counsel was appointed for a limited purpose, and was accorded
the option of withdrawing his representation of plaintiff or, at his discretion, proceeding as
plaintiff’s appointed counsel for purposes of discovery, settlement and/or trial. (ECF No. 31 at
2.) Counsel continued his representation through the settlement conference, and has not moved to
during the settlement conference he requested from the court, “could he have this 115 removed
from his C-files,” and after he returned to prison, he filed a 602 appeal seeking to have the 115
removed, but his 602 appeals were denied. (ECF No. 40 at 1-2.) Plaintiff claims that he has
attempted to contact counsel “with no luck.” (ECF No. 40 at 2.) Plaintiff asks the court to
contact plaintiff’s attorney to either modify the settlement and file a writ or prepare for trial.
(ECF No. 40 at 2.)
Typically such motions are referred to the settlement judge. However, the undersigned
has reviewed the settlement placed on the record by Judge Thurston on June 19, 2014. When the
settlement was placed on the record, plaintiff specifically asked whether the 115 would be “pulled
from” plaintiff’s files, and the settlement judge explained that it would not, because plaintiff’s
case concerned plaintiff 602 appeal, and did not directly challenge the 115. Plaintiff responded
by stating, “Okay.” (Id.) Because the record makes clear that the settlement in this action did not
include the removal of the 115 from plaintiff’s prison files, plaintiff’s motion is denied.
Moreover, because counsel was only appointed to represent plaintiff in connection with his 602
challenge, no further action by counsel is required.2
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion (ECF No. 40) is denied.
Dated: December 29, 2014
In plaintiff’s earlier request, plaintiff claims that the settlement court ordered plaintiff’s attorney
to file a writ of habeas corpus. (ECF No. 38 at 2.) The record does not reflect such an order, and
the limited appointment of counsel in this action did not include a requirement that counsel
pursue a writ of habeas corpus on behalf of plaintiff in a new action. However, plaintiff is not
precluded from filing a pro se writ of habeas corpus.
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