Birrell, et al., v. Fox, et al.,

Filing 52

ORDER signed by Magistrate Judge Carolyn K. Delaney on 05/10/19 DENYING 47 Motion for relief from court order. (Plummer, M)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID WESLEY BIRRELL, et al., 11 12 13 14 No. 2:16-cv-1818 JAM CKD P Plaintiffs, v. ORDER ROBERT W. FOX, Defendant. 15 16 On February 7, 2019, the court granted Paul R. Martin’s June 22, 2018 motion to 17 withdraw as counsel for plaintiffs based mostly upon Mr. Martin’s representation that his 18 advanced age of 82, deteriorating health, and memory loss prevent him from providing adequate 19 advocacy. On December 7, 2018, and presumably in accord with this court’s directive to Mr. 20 Martin that he turn over all case materials to plaintiff Birrell, plaintiff Birrell received, at the 21 California Medical facility, a large box containing “legal mail” from Mr. Martin. 22 Plaintiff Birrell opened the box and identified legal files as well as physical evidence 23 containing asbestos. ECF No. 34 at 2. Mr. Birrell then closed the box, notified a correctional 24 officer the box contained asbestos and demanded that the box be returned to Mr. Martin. Id. & 25 ECF No. 34-1 at 4. At that point, the correctional officer returned the box to the mail room (ECF 26 No. 34 at 2), and the box was eventually returned to Mr. Martin (ECF No. 47 at 2). 27 28 Plaintiff Birrell now asks that, in light of the foregoing, he and the other plaintiffs be “relieved” of the court’s order permitting Mr. Martin to withdraw “until such time as Attorney 1 1 Martin is made to surrender all of the relevant case files and documents that he has in his 2 possession.”1 Id. at 10. Even assuming the court has the power to do so, Mr. Martin will not be 3 reinstated as counsel for plaintiffs in this case. The fact that plaintiff no longer has Mr. Martin’s 4 files and evidence concerning this case is of plaintiff Birrell’s own doing. Nothing suggests the 5 minimal exposure to asbestos which would have accompanied a review of the items in the box 6 sent to plaintiff Birrell would have been harmful in any meaningful respect. Accordingly, IT IS HEREBY ORDERED that plaintiff Birrell’s February 27, 2019 7 8 “motion for relief from court’s order of February 7, 2019 . . .” (ECF No 47) is denied. 9 Dated: May 10, 2019 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 1 birr1818.mfr 16 17 18 19 20 21 22 23 24 25 26 27 28 1 In the motion filed February 27, 2019, plaintiff suggests Mr. Martin is not being truthful about his mental health. In support, he claims Mr. Martin is still attorney of record in several cases before this court. This is not true. Mr. Martin appears to be attorney of record in one other case, 2:16-cv-2641 MCE DMC, and has taken no action in that case since the case was filed in 2016. 2

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