Jones v. Virga et al

Filing 41

ORDER signed by Magistrate Judge Kendall J. Newman on 12/29/14 DENYING 40 Motion.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENRY A. JONES,

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Plaintiff,

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No. 2:12-cv-2695 MCE KJN P

v.

ORDER

G. WHITTED, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding through counsel.1 By stipulation and order, this

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action was terminated on June 30, 2014. (ECF No. 37.) On October 10, 2014, plaintiff filed a

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pro se request for court order, seeking to contest an issue allegedly resolved by the settlement in

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this action. (ECF No. 38.) On November 14, 2014, plaintiff’s pro se motion was denied, and

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plaintiff was instructed that if he was seeking to enforce or modify the settlement, he must file

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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

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settlement,” in which he claims that he feels that the settlement agreement was breached because

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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
withdraw.
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during the settlement conference he requested from the court, “could he have this 115 removed

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from his C-files,” and after he returned to prison, he filed a 602 appeal seeking to have the 115

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removed, but his 602 appeals were denied. (ECF No. 40 at 1-2.) Plaintiff claims that he has

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attempted to contact counsel “with no luck.” (ECF No. 40 at 2.) Plaintiff asks the court to

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contact plaintiff’s attorney to either modify the settlement and file a writ or prepare for trial.

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(ECF No. 40 at 2.)

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Typically such motions are referred to the settlement judge. However, the undersigned

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has reviewed the settlement placed on the record by Judge Thurston on June 19, 2014. When the

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settlement was placed on the record, plaintiff specifically asked whether the 115 would be “pulled

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from” plaintiff’s files, and the settlement judge explained that it would not, because plaintiff’s

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case concerned plaintiff 602 appeal, and did not directly challenge the 115. Plaintiff responded

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by stating, “Okay.” (Id.) Because the record makes clear that the settlement in this action did not

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include the removal of the 115 from plaintiff’s prison files, plaintiff’s motion is denied.

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Moreover, because counsel was only appointed to represent plaintiff in connection with his 602

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challenge, no further action by counsel is required.2
Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion (ECF No. 40) is denied.

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Dated: December 29, 2014

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/jone2695.den2

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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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