(PC) Turner v. Guibord ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY DEWAYNE LEE TURNER, No. 2:19-cv-00416-TLN-DB 12 Plaintiff, 13 v. ORDER 14 GUIBORD, 15 Defendant. 16 17 18 This matter is before the Court on Plaintiff Anthony Dewayne Lee Turner’s (“Plaintiff”) 19 Motion to Reopen the Case, Motions for Reconsideration, Motion for Leave to File a Motion for 20 Reconsideration, Motion to Appoint Counsel, and Motion for Stay of Judgment for a total of 21 seven motions. (ECF Nos. 102, 104, 105, 109–111, 114.) Defendant Guibord (“Defendant”) 22 filed two oppositions to two of Plaintiff’s motions. (ECF Nos. 103, 107.) Plaintiff did not file a 23 reply nor did Defendant file oppositions to Plaintiff’s other motions. 24 For the reasons set forth below, the Court DENIES Plaintiff’s second, third, fourth, fifth, 25 and seventh motions (ECF Nos. 104–105, 109–110, and 114), and DEFERS ruling on Plaintiff’s 26 first and sixth motions (ECF Nos. 102, 111). 27 /// 28 1 A detailed recitation of the factual and procedural history is not necessary for the 2 disposition of Plaintiff’s motions. As relevant here, Plaintiff is currently incarcerated at the Rio 3 Cosumnes Correctional Center. (ECF No. 102.) Plaintiff commenced this § 1983 action in 4 March 2019 against various individual and entity defendants, proceeding pro se and in forma 5 pauperis. (ECF Nos. 7, 22.) The Court screened Plaintiff’s operative Complaint and dismissed 6 all claims except for his excessive force claim against Defendant. (ECF Nos. 26, 28.) The parties 7 engaged in some discovery, but Plaintiff failed to timely update the Court about the change in his 8 address in violation of Local Rule 183(b).1 As a result, the magistrate judge made findings and 9 recommended Plaintiff’s operative Complaint be dismissed for failure to prosecute under Federal 10 Rule of Civil Procedure (“Rule”) 41(b) (“F&Rs”). (ECF Nos. 99.) Any written objections to the 11 F&Rs were to be filed with the Court within fourteen (14) days of being served. (Id.) The Court 12 attempted to serve the F&Rs on Plaintiff via U.S. mail on October 13, 2024, but the F&Rs were 13 returned as undeliverable. Neither party filed any objections. 14 On November 15, 2023, the Court adopted the F&Rs in full and dismissed the action for 15 failure to prosecute. (ECF No. 100.) The Clerk of Court entered Judgment that same day. (ECF 16 No. 101.) 17 Plaintiff subsequently filed seven post-judgment motions: (1) a motion to reopen the case 18 and a notice of a change of address (ECF No. 102); (2) a motion for reconsideration of the 19 Court’s Order, dismissing his case (ECF No. 104); (3) a motion for reconsideration of the Court’s 20 Order, dismissing his case (ECF No. 105); (4) a motion for leave to file a motion for 21 reconsideration (ECF No. 109); (5) a motion for reconsideration of the Court’s Order, denying his 22 motion to appoint counsel (ECF No. 110); (6) a motion to appoint counsel (ECF No. 111); and 23 (7) a motion for a stay of the Court’s Judgment (ECF No. 114). The Court has reviewed each 24 25 1 Local Rule 183(b) states that “[a] party appearing in propria persona shall keep the Court and opposing parties advised as to his or her current address.” “If mail directed to a plaintiff in 26 propria persona by the Clerk is returned by the U.S. Postal Service, and if such plaintiff fails to 27 notify the Court and opposing parties within sixty-three (63) days thereafter of a current address, the Court may dismiss the action without prejudice for failure to prosecute.” L.R. 183(b). 28 1 motion and finds Plaintiff’s second, third, fourth, fifth, and seventh motions are without merit, 2 and discusses each briefly in turn. 3 Plaintiff’s second and third motions urge the Court to reconsider its prior rulings. The 4 Court construes these motions as motions for relief from the Court’s Order and Judgment under 5 Rule 60. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (court must construe pro se 6 plaintiff’s pleadings liberally). 7 Under Rule 60, a district court may relieve a party from a final judgment or order for the 8 following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; 9 10 (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial 11 under Rule 59(b); 12 (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; 13 14 (4) the judgment is void; 15 (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; 16 or applying it prospectively is no longer equitable; or 17 (6) any other reason that justifies relief. 18 Fed. R. Civ. P. 60(b). 19 In his third motion, Plaintiff contends relief is warranted because there are new facts that 20 “the motorist did not require that motorist whose driver’s license was suspended be given credit 21 against that suspension for a previous period of suspension that had been erroneously imposed 22 against him.” (ECF No. 105.) However, Plaintiff fails to indicate how this is relevant to the 23 Court’s decision to dismiss his case for failure to prosecute or otherwise demonstrate he is 24 entitled to relief. Similar deficiencies exist for his second motion. 25 Plaintiff’s fourth motion requests leave from the Court to file a motion for reconsideration 26 of the Court’s Order, dismissing his case (i.e., another Rule 60 motion). (ECF No. 109.) As 27 28 1 already discussed, however, Plaintiff has already filed more than one such motion, and Plaintiff 2 fails to articulate any reason why another motion should be permitted. 3 Plaintiff’s fifth motion is a motion for reconsideration of the Court’s Order denying his 4 request to appoint counsel. (ECF No. 111.) However, Plaintiff’s sixth motion is a renewed 5 motion to appoint counsel, and therefore, the Court finds Plaintiff’s fifth motion is moot. 6 Plaintiff’s seventh motion is a motion for a stay of the Court’s Judgment. (ECF No. 114.) 7 In that motion, Plaintiff contends he is awaiting placement and participation in a mental health 8 diversion program, and indicates he is working with his public defender in connection therewith. 9 (Id.) However, Plaintiff again fails to indicate how this information is relevant to the propriety of 10 a stay or otherwise demonstrate he is entitled to relief. 11 Turning now to Plaintiff’s first 2and sixth motions and construing them liberally, Hebbe, 12 627 F.3d at 342, Plaintiff contends he failed to update the Court about the change in his address 13 because he was receiving mental health treatment to restore his mental competency, and requests 14 the Court reopen his case and appoint him counsel. (ECF Nos. 102, 111.) Defendant filed an 15 opposition to Plaintiff’s first motion under Rule 60 but does not address this allegation. (ECF No. 16 103.) Instead, Defendant argues the Court should deny Plaintiff’s Rule 60 motion because 17 “Plaintiff had available remedies at his disposal to challenge the judgment, but Plaintiff did not 18 pursue those remedies by the appropriate deadline.” (Id.) Defendant did not file an opposition to 19 Plaintiff’s motion to appoint counsel. 20 To appoint counsel under 28 U.S.C. § 1915, the Court must find exceptional 21 circumstances exist upon an evaluation of the likelihood of success of the merits and the ability of 22 Plaintiff to articulate his legal position in light of the complexity of the legal issues. Terrell v. 23 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (citation omitted). “Neither of these factors is 24 dispositive and both must be viewed together before reaching a decision.” Id. 25 As discussed above, Plaintiff has had some difficulty articulating his legal positions. 26 Moreover, the likelihood that Plaintiff will succeed on his Rule 60 motion will depend upon 27 28 2 The Court also construes Plaintiff’s first motion as a motion under Rule 60. 1 Plaintiff substantiating his allegation he failed to update the Court about the change in his address 2 because he was mentally incompetent and/or receiving mental health treatment to restore his 3 mental competency. However, because of the very nature of this allegation and Plaintiff’s 4 sometimes incoherent arguments, the Court has some doubt that Plaintiff will be able to provide 5 the necessary verification. 6 Upon consideration of the record, the Court finds that the appointment of counsel is 7 appropriate for the limited purpose of verifying Plaintiff’s allegation that he was mentally 8 incompetent and/or receiving mental health treatment during the sixty-three (63) day period 9 where Plaintiff was required to update the Court and Defendant about the change in his address. 10 If the allegation is substantiated, the Court will grant Plaintiff’s unopposed motion to appoint 11 counsel (ECF No. 111) and invite Plaintiff to supplement his motion for relief from the Court’s 12 Judgment and Order, specifically arguing the propriety of Rule 60(b)(6) (ECF No. 102). 13 Defendant will be given an opportunity to oppose the supplemental motion, and Plaintiff will be 14 given an opportunity to reply. 15 Accordingly, the Court: 16 1. DENIES Plaintiff’s second, third, fourth, fifth, and seventh motions (ECF Nos. 104–105, 17 109–110, and 114); 18 2. DEFERS ruling on Plaintiff’s first motion (ECF No. 102); and 19 3. GRANTS Plaintiff’s sixth motion (ECF No. 111) for the limited purpose discussed above 20 and, if necessary, to thereafter represent Plaintiff for any supplemental post-judgment 21 motion under Rule 60(b)(6) and otherwise assist Plaintiff in the prosecution of his case. 22 The Court refers this matter to the administrator of this District’s pro bono panel of 23 attorneys, Sujean Park Castelhano, for the identification of counsel to represent Plaintiff. 24 If counsel has been identified, the Court will issue an Order appointing counsel, and 25 Plaintiff’s counsel will have ninety (90) days therefrom to: (a) file a supplemental motion 26 under Rule 60(b)(6) with documents verifying Plaintiff’s mental incapacity and/or mental 27 health treatment during the relevant period; or (b) file a statement, indicating he or she 28 could not verify Plaintiff’s mental health allegation. If the Court does not issue an Order 1 appointing counsel within thirty (30) days of this Order, Plaintiff will have until 2 November 29, 2024, to file any supplemental motion under Rule 60(b)(6) ONLY insofar 3 as to provide evidence necessary to substantiate his claim that he was mentally 4 incapacitated and/or receiving mental health treatment during the relevant time period. 5 Defendant may file an opposition on or before December 13, 2024, and Plaintiff may file 6 a reply on or before December 20, 2024. 7 4. NO FURTHER FILINGS in this matter will be entertained until the Court issues an Order 8 appointing counsel or thirty (30) days have elapsed from the electronic filing date of this 9 Order. 10 IT IS SO ORDERED. 11 | Date: September 24, 2024 2 □□ /) 13 \ | /] / “ / } Ain 14 me aw NL 15 Troy L. Nunley . } United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28