(PC) Grady v. Gutierrez ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARQUISE GRADY, Case No. 1:18-cv-00922-ADA-HBK (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO FIND DEFENDANTS IN 13 v. BREACH OF SETTLEMENT AGREEMENT1 14 LT. C. GUTIERREZ, ET. AL., FOURTEEN-DAY OBJECTION PERIOD 15 Defendants. (Doc. No. 39) 16 17 Plaintiff Marquise Grady is a state prisoner and proceeds pro se and in forma pauperis in 18 this civil rights action filed pursuant to 42 U.S.C. § 1983, which is closed. Specifically, in an 19 Order dated June 26, 2020, the Court directed the Clerk of Court to close action based upon the 20 parties’ notice of voluntary dismissal with prejudice under Fed. R. Civ. P. 41 (a)(1)(A)(ii). (Doc. 21 No. 36). 22 Pending before the Court is Plaintiff’s “motion to enforce settlement agreement” filed on 23 March 1, 2021, claiming Defendants are in default of the settlement agreement. (Doc. No. 39). 24 Defendants filed an opposition, attaching as an exhibit a declaration from attorney Erik A. 25 Gutierrez in support. (Doc. No. 41). Plaintiff filed a Reply maintaining that he was not paid and 26 further disputing that any delay in completing the settlement papers was not his fault. (Doc. No. 27 28 1 This matter was reassigned to the undersigned on September 1, 2022. 1 44). Defendants filed a supplemental opposition, attaching as an exhibit a declaration from S. 2 Saunders, the custodian of records for inmate accounts, and a copy of Plaintiff’s relevant inmate 3 trust fund account statement. (Doc. Nos. 45, 45-1). Plaintiff filed a response to the 4 supplemental opposition contesting the amount of the settlement paid toward his restitution 5 obligation. (Doc. No. 47). Because the facts demonstrate Plaintiff timely received the settlement 6 funds, the undersigned recommends the district court deny Plaintiff’s motion. 7 Plaintiff contends that Defendants failed to deposit the settlement funds into his inmate 8 trust account within 180 days from the date Plaintiff delivered the signed settlement agreement 9 and related forms to Defendants, which was a violation of the settlement agreement. (Doc. No. 10 39 at 1). As a result, Plaintiff requests the Court sanction Defendants with a “$10,000 penalty 11 fee.” (Id. at 2). In opposition, Defendants explain the settlement papers required Plaintiff to 12 provide his social security number on the form, sign the form, and return the completed papers to 13 counsel. (Doc. No. 41 at 3-4). Defense counsel explains Plaintiff was to provide his social 14 security number to him and return the papers, but he did not. (Id.). Instead, counsel states after 15 not timely receiving the completed papers from Plaintiff, he located Plaintiff’s social security 16 number, sent new papers back to Plaintiff, and received those papers back from Plaintiff on 17 September 18, 2020. (Id. at 3-4). Defense counsel explains he could not process the settlement 18 payment with CDCR until he received the signed, required settlement papers. (Id.). Thus, the 19 180-day time period within which to pay the settlement funds expired 180 days from September 20 18, 2020, or on March 18, 2021. (Id. at 4). Defense counsel attests under oath that the settlement 21 funds were paid in full to Plaintiff on February 5, 2021. (Id. at 5). In a supplemental response, 22 Defendants provide a copy of Plaintiff’s inmate trust fund account reflecting settlement funds 23 deposited in his inmate trust fund account on February 18, 2021. (Doc. No. 45-1 at 5). In reply, 24 Plaintiff acknowledges he received settlement funds, but for the first time challenges the amount 25 of funds taken from the settlement funds for his restitution obligation. (Doc. No. 44). 26 Initially, the Court does not address Plaintiff’s challenges to the amount of the settlement 27 funds which were applied to his restitution because Plaintiff raised this issue for the first time in 28 his reply brief. A party’s arguments that are raised for the first time in a reply brief and were not 1 asserted in the initial motion are deemed waived. Eberle v. City of Anaheim, 901 F.2d 814, 818 2 (9th Cir. 1990)(citations omitted). 3 With respect to Plaintiff’s claims that he did not timely receive the settlement funds, a 4 review of the docket shows the case settled after a settlement conference was held on May 27, 5 2020. (Doc. No. 34; Doc. No. 41 at 3). The parties had 30 days to file dispositional documents 6 with the Court. (Doc. No. 34). On June 25, 2020, Defendants filed an executed stipulation for 7 voluntary dismissal containing both Plaintiff and defense counsel’s signatures. (Doc. No. 35). 8 Thus, dispositional documents were timely filed with the Court within 30 days. 9 Pursuant to the terms of the Settlement and Release, CDCR had 180 days from the date 10 Plaintiff delivered the signed both the stipulation for voluntary dismissal and the Settlement 11 Agreement and Release to Defendants to pay the settlement amount. (Doc. No. 41 at 2). Using 12 the date defense counsel received the completed, signed settlement papers, Defendant had until 13 Thursday, March 18, 2021 to deposit the settlement funds into Plaintiff’s inmate trust fund 14 account. The declaration submitted under oath confirms CDCR processed payment to Plaintiff on 15 February 5, 2021. (Doc. No. 41 at 5). Moreover, the copy of Plaintiff’s inmate trust fund account 16 statement provided with Defendants’ supplemental response reflects the settlement funds 17 deposited in Plaintiff’s account on February 18, 2021.2 (See Doc. No. 45-1 at 5). Based upon a 18 review of the docket and the uncontroverted evidence submitted by Defendants, Defendants 19 deposited $2,500.00 into Plaintiff’s inmate trust fund account before the 180 days expired on 20 March 18, 2021 and did not breach the settlement agreement. 21 Accordingly, it is RECOMMENDED: 22 Plaintiff’s motion to find Defendants in breach of settlement agreement (Doc. No. 39) be 23 DENIED. 24 NOTICE TO THE PARTIES 25 These findings and recommendations are submitted to the United States District Judge 26 2 Plaintiff correctly notes the date discrepancy concerning payment of settlement funds. (Doc. No. 47 at 27 2). Because either the February 5, 2021 or February 18, 2021 payment is still before the 180-day deadline expired on March 18, 2021, the Court need not determine whether the date the payment was “processed” 28 as opposed to “deposited” controls. 1 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 2 | days after being served with these findings and recommendations, any party may file written 3 | objections with the court. Such a document should be captioned “Objections to Magistrate 4 | Judge’s Findings and Recommendations.” Any response to the objections shall be served and 5 | filed within fourteen (14) days after service of the objections. The parties are advised that failure 6 | to file objections within the specified time may result in the waiver of rights on appeal. 7 Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 8 | 1391, 1394 (th Cir. 1991)). 9 10 Dated: _ September 6, 2022 Mila Zh. foareh Zack 11 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28