Johnson v. Beard

Filing 88

ORDER signed by Magistrate Judge Kendall J. Newman on 08/24/20 GRANTING 86 plaintiff's request as set forth above. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL DAVID JOHNSON,

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Plaintiff,

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v.

No. 2:15-cv-1313 TLN KJN P

ORDER

E. NAKU, M.D., et al.

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. On August 19, 2020, plaintiff

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filed a request for clarification of the court’s August 7, 2020 order requiring plaintiff to provide

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additional information for service of process on defendant Mahmoud. Plaintiff contends that the

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Ninth Circuit would not have appointed him pro bono counsel in his action against defendant

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Mahmoud “if there isn’t any defendant.” (ECF No. 86 at 2.) Plaintiff claims that the Orrick law

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firm took his case on January 11, 2019, so he’s trying to figure out what the August 7, 2020 order

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means.

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Court records for plaintiff’s Appeal No. 20-16498 reflect that counsel was not appointed

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for plaintiff; rather, on August 19, 2020, plaintiff’s August 5, 2020 appeal was dismissed for lack

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of jurisdiction. Johnson v. Mahmoud, No. 20-16498 (9th Cir.). The docket reflects that

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plaintiff’s motion for appointment of pro bono counsel was docketed on August 21, 2020, but the

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docket entry also notes: “Deficiencies: Case closed.” (Id.) The mandate has not yet issued.
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Plaintiff filed two earlier appeals of this case in the Ninth Circuit. Johnson v. Beard, No.

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19-16485 and No. 18-17201 (9th Cir.). Both of these prior appeals were also dismissed for lack

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of jurisdiction; no pro bono counsel was appointed in either case.

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Plaintiff did not provide a copy of a Ninth Circuit order appointing pro bono counsel.

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Rather, he provided a copy of the Ninth Circuit’s notice that plaintiff had filed an appeal on

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August 5, 2020. Because his appeal was filed on August 5, 2020, it does not appear possible he

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was appointed counsel on January 11, 2019, before his appeal was even filed. Perhaps plaintiff

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was appointed counsel in a different case. No substitution of counsel for plaintiff has been filed

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in this action.

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In any event, to answer plaintiff’s request for clarification concerning the August 7, 2020

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order (ECF No. 81), the answer is yes, plaintiff is required to comply with such order. The

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instant case is proceeding against four defendants, none of whom have yet answered. (ECF No.

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55.) Defendant Chen was dismissed on July 28, 2020. Service of process has been executed on

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defendants Naku and Collinsworth. But service of process on defendant Mahmoud was returned

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unexecuted. Thus, plaintiff must comply with the August 7, 2020 order in order for the court to

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serve process on defendant Mahmoud.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request (ECF No. 86) is granted,

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as set forth above.

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Dated: August 24, 2020

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/john1313.cla

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