Meneweather v. Powell et al
Filing
230
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)
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UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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OAKLAND DIVISION
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6 TOMAS LOPEZ MENEWEATHER,
Plaintiff,
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vs.
Case No: C 07-4204 SBA
ORDER REOPENING ACTION
AND WITHDRAWING
REFERENCE FROM THE
FEDERAL PRO BONO PROJECT
9 B. POWELL, et al.,
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Defendants.
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Plaintiff Tomas Lopez Meneweather (“Plaintiff”), a state prisoner, brings the instant
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action under 42 U.S.C. § 1983, alleging that alleging Eighth Amendment violations arising
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from unsanitary conditions of confinement while he was housed at the Salinas Valley State
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Prison (“SVSP”). He claims that other inmates intentionally flooded their cells, causing
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waste-contaminated water to enter his cell where it would remain until it dried up, which, in
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turn, caused him to become ill. Plaintiff sued Defendants—SVSP correctional officers and
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a nurse—alleging that they denied his repeated requests to clean his cell, to assign him an
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inmate worker to clean his cell, or to release him from administrative segregation to general
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population where he could receive an inmate worker to clean his cell. Defendants contend
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that Plaintiff’s claims are unfounded that he lacks evidence to substantiate that the
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contamination occurred or that he became sick as a result.
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Earlier in the case, the Court appointed the law firm of Sheppard, Mullin, Richter &
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Hampton LLP (“Sheppard Mullin”) to represent Plaintiff in this action on a pro bono basis.
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Dkt. 72. After representing Plaintiff for approximately eight months, Sheppard Mullin
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sound to withdraw as counsel of based on mandatory and permissive withdrawal provisions
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set forth in California Rules of Professional Conduct, rules 3-700(B) and (C), respectively.
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Dkts. 116. Plaintiff subsequently requested the appointment of substitute counsel, which
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the Court denied. Dkts. 132, 136. Applying the governing legal standard for evaluating
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such requests, the Court concluded, inter alia, that Plaintiff exhibited no difficulty in
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articulating his claims in light of the complexity of the legal issues involved, and also, in
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part, because Sheppard Mullin’s withdrawal due to ethical concerns would make it “very
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difficult to find an attorney willing to represent Plaintiff.” Dkt. 136 at 2-3.
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The most recent trial date in this action was February 22, 2016. Dkt. 201. In
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anticipation of trial, Defendants timely filed their pretrial documents and motions in limine;
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however, Plaintiff failed to file any documents. Instead, well after his filing deadline had
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passed, Plaintiff filed a renewed motion for appointment of counsel and request for an
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extension of time to file pretrial documents. Dkts. 221, 222. According to Plaintiff,
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appointed counsel is necessary because he suffers from paralysis, which impedes the use of
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his right hand, and that use of his left hand is impaired such that he cannot write, open mail,
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or “turn pages.” Dkt. 221. At the direction of the Court, Defendants filed a response to
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Plaintiff’s requests and submitted his medical and mental health records (under seal) to
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facilitate the Court’s evaluation his claims. Dkts. 225-4, 224-5, 225-6. Defendants stated
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that while they opposed the reappointment of counsel, they did not oppose a brief extension
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of time for Plaintiff to file his pretrial documents.
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On August 26, 2016, the Court issued its ruling on Plaintiff’s motion for the
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appointment of counsel and request for an extension of time. The Court, upon reviewing
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the records submitted, concluded although Plaintiff had overstated the nature and extent of
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his purported afflictions. Nonetheless, out of an abundance of caution, the Court granted
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Plaintiff’s request for counsel and re-referred the action to the Federal Pro Bono Project
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(“FPBP”) to ascertain whether there is pro bono willing to represent Plaintiff in this case.
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Dkt. 228 at 7. The Court further stated that: “In the event the FPBP is unable to locate
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suitable counsel within the 30 day referral period, the referral will automatically be deemed
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withdrawn and a new trial date and deadlines for pretrial documents and other filings will
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be set.” Id. at 9. The FPBP has since notified the Court that it has been unable to locate
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counsel willing to represent Plaintiff in this case. Accordingly,
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IT IS HEREBY ORDERED THAT:
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1.
The instant action shall be reopened.
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2.
By no later than October 26, 2017, Plaintiff shall file the following:
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a.
Pretrial conference statement
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b.
Trial brief
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c.
Witness list
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d.
Exhibit list
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e.
Proposed jury instructions
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f.
Proposed voir dire
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g.
Proposed form of verdict
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h.
Responses to Defendants’ motions in limine.
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Plaintiff is warned that in the event he fails to file any of the documents listed above
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by October 26, 2017, the Court will dismiss the action with prejudice. See Fed. R. Civ. P.
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41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962); Pagtalunan v. Galaza, 291
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F.3d 639, 640 (9th Cir. 2002) (affirming dismissal of habeas petition because of petitioner’s
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disobedience with orders setting filing deadlines); see also Ghazali v. Moran, 46 F.3d 52,
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53-54 (9th Cir.1995) (affirming dismissal of prisoner’s civil rights complaint for failure to
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file opposition to motion to dismiss as required by local rule). In the event Plaintiff timely
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files all of the required documents, as listed, the Court will schedule a case management
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conference to reset this matter for trial. The Court will not consider any further requests for
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extensions of time by Plaintiff, absent unforeseen exigent circumstances and unless
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supported by appropriate documentation.
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IT IS SO ORDERED.
Dated: 9/27/17
______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge
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