Meneweather v. Powell et al
ORDER REOPENING ACTION AND WITHDRAWING REFERENCE FROM THE FEDERAL PRO BONO PROJECT. Pretrial Preparation due by 10/27/2017. Signed by Judge Saundra B. Armstrong on 9/28/17. (Attachments: # 1 Certificate/Proof of Service)(dtmS, COURT STAFF) (Filed on 9/28/2017)
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
6 TOMAS LOPEZ MENEWEATHER,
Case No: C 07-4204 SBA
ORDER REOPENING ACTION
REFERENCE FROM THE
FEDERAL PRO BONO PROJECT
9 B. POWELL, et al.,
Plaintiff Tomas Lopez Meneweather (“Plaintiff”), a state prisoner, brings the instant
action under 42 U.S.C. § 1983, alleging that alleging Eighth Amendment violations arising
from unsanitary conditions of confinement while he was housed at the Salinas Valley State
Prison (“SVSP”). He claims that other inmates intentionally flooded their cells, causing
waste-contaminated water to enter his cell where it would remain until it dried up, which, in
turn, caused him to become ill. Plaintiff sued Defendants—SVSP correctional officers and
a nurse—alleging that they denied his repeated requests to clean his cell, to assign him an
inmate worker to clean his cell, or to release him from administrative segregation to general
population where he could receive an inmate worker to clean his cell. Defendants contend
that Plaintiff’s claims are unfounded that he lacks evidence to substantiate that the
contamination occurred or that he became sick as a result.
Earlier in the case, the Court appointed the law firm of Sheppard, Mullin, Richter &
Hampton LLP (“Sheppard Mullin”) to represent Plaintiff in this action on a pro bono basis.
Dkt. 72. After representing Plaintiff for approximately eight months, Sheppard Mullin
sound to withdraw as counsel of based on mandatory and permissive withdrawal provisions
set forth in California Rules of Professional Conduct, rules 3-700(B) and (C), respectively.
Dkts. 116. Plaintiff subsequently requested the appointment of substitute counsel, which
the Court denied. Dkts. 132, 136. Applying the governing legal standard for evaluating
such requests, the Court concluded, inter alia, that Plaintiff exhibited no difficulty in
articulating his claims in light of the complexity of the legal issues involved, and also, in
part, because Sheppard Mullin’s withdrawal due to ethical concerns would make it “very
difficult to find an attorney willing to represent Plaintiff.” Dkt. 136 at 2-3.
The most recent trial date in this action was February 22, 2016. Dkt. 201. In
anticipation of trial, Defendants timely filed their pretrial documents and motions in limine;
however, Plaintiff failed to file any documents. Instead, well after his filing deadline had
passed, Plaintiff filed a renewed motion for appointment of counsel and request for an
extension of time to file pretrial documents. Dkts. 221, 222. According to Plaintiff,
appointed counsel is necessary because he suffers from paralysis, which impedes the use of
his right hand, and that use of his left hand is impaired such that he cannot write, open mail,
or “turn pages.” Dkt. 221. At the direction of the Court, Defendants filed a response to
Plaintiff’s requests and submitted his medical and mental health records (under seal) to
facilitate the Court’s evaluation his claims. Dkts. 225-4, 224-5, 225-6. Defendants stated
that while they opposed the reappointment of counsel, they did not oppose a brief extension
of time for Plaintiff to file his pretrial documents.
On August 26, 2016, the Court issued its ruling on Plaintiff’s motion for the
appointment of counsel and request for an extension of time. The Court, upon reviewing
the records submitted, concluded although Plaintiff had overstated the nature and extent of
his purported afflictions. Nonetheless, out of an abundance of caution, the Court granted
Plaintiff’s request for counsel and re-referred the action to the Federal Pro Bono Project
(“FPBP”) to ascertain whether there is pro bono willing to represent Plaintiff in this case.
Dkt. 228 at 7. The Court further stated that: “In the event the FPBP is unable to locate
suitable counsel within the 30 day referral period, the referral will automatically be deemed
withdrawn and a new trial date and deadlines for pretrial documents and other filings will
be set.” Id. at 9. The FPBP has since notified the Court that it has been unable to locate
counsel willing to represent Plaintiff in this case. Accordingly,
IT IS HEREBY ORDERED THAT:
The instant action shall be reopened.
By no later than October 26, 2017, Plaintiff shall file the following:
Pretrial conference statement
Proposed jury instructions
Proposed voir dire
Proposed form of verdict
Responses to Defendants’ motions in limine.
Plaintiff is warned that in the event he fails to file any of the documents listed above
by October 26, 2017, the Court will dismiss the action with prejudice. See Fed. R. Civ. P.
41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Pagtalunan v. Galaza, 291
F.3d 639, 640 (9th Cir. 2002) (affirming dismissal of habeas petition because of petitioner’s
disobedience with orders setting filing deadlines); see also Ghazali v. Moran, 46 F.3d 52,
53-54 (9th Cir.1995) (affirming dismissal of prisoner’s civil rights complaint for failure to
file opposition to motion to dismiss as required by local rule). In the event Plaintiff timely
files all of the required documents, as listed, the Court will schedule a case management
conference to reset this matter for trial. The Court will not consider any further requests for
extensions of time by Plaintiff, absent unforeseen exigent circumstances and unless
supported by appropriate documentation.
IT IS SO ORDERED.
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge
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