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Miller v. Woodford

January 28, 2010

GERALD LEE MILLER, JR. PLAINTIFF,
v.
JANNE WOODFORD, ET AL., DEFENDANTS.



ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently outstanding are several motions filed by plaintiff directed toward obtaining the current address of defendant G. Costra in order to effect service, Dckt. Nos. 60, 87, 93, 103*fn1 , a motion concerning a prior default order against defendant L. Dial, Dckt. No. 83, and a request that the Court reconsider a prior order denying plaintiff's request for a temporary restraining order ("TRO"), Dckt. No. 67. Also before the Court is a motion to dismiss plaintiff's state-law causes of action filed by defendants Cox, Huckabee, James, and Dial, Dckt. No. 88.

For the following reasons, the Court denies plaintiff's requests for leave to file an amended motion to compel, Dckt. No. 60, and for the Court's assistance in locating defendant G. Costra, Dckt. Nos. 87, 93, 103. Further, the Court recommends denial of plaintiff's requests for an ex parte hearing, Dckt. No. 83, and reconsideration of his motion for a TRO, Dckt. No. 67. Finally, the Court recommends that defendants' motion to dismiss plaintiff's state-law causes of action, Dckt. No. 88, be granted.

I. Plaintiff's Motions Regarding G. Costra

On April 22, 2009, plaintiff filed a "Motion for Leave to File an Amended Motion to Compel Discovery,"Dckt. No. 60, seeking an order compelling defendants to respond to his discovery requests inquiring into the whereabouts of defendant G. Costra. Plaintiff filed a nearly identical motion on June 5, 2009, Dckt. No. 71, which the Court denied on August 25, 2009, Dckt. No. 95. For the same reasons provided in that order, the Court also denies plaintiff's April 22, 2009 motion, Dckt. No. 60.

Plaintiff has also filed two "Motion[s] for Intervention," the first on July 31, 2009, Dckt. No. 87, and the second on August 20, 2009, Dckt. No. 93. By these motions, plaintiff seeks to have the Court intervene on his behalf to locate G. Costra. In an order dated April 16, 2008, the Court informed plaintiff that he could seek G. Costra's address "through discovery, the California Public Records Act, California Government Code §§ 6250, et seq., or any other means available." Plaintiff states that defendants will not answer his discovery requests about G. Costra's whereabouts and that his imprisonment in a high security facility prevents him from filing a Public Records Act request to obtain the information. Plaintiff has not explained why his imprisonment prevents him from seeking the information through a request under the Public Records Act.Indeed, from his prosecution of the instant action it appears that plaintiff is able to file legal requests despite his incarceration. In addition, on August 25, 2009, the Court granted plaintiff's request to modify the discovery scheduling order to permit him to serve an amended discovery request to defendants regarding G. Costra's location. As plaintiff has not shown that he cannot obtain G. Costra's address through the currently available avenues of discovery or a Public Records Act request, the Court denies plaintiff's requests for the Court's intervention, Dckt. Nos. 87, 93. For the same reasons, the Court denies plaintiff's request that the Court itself provide plaintiff with G. Costra's address, Dckt. No. 103.

II. Plaintiff's Motion for Ex Parte Hearing

On July 20, 2009, Plaintiff filed a "Motion for Default Judgment. Petitioner Request for Ex Parte Hearing Before the Court and Judgment without Further Notice," Dckt. No. 83. Plaintiff states that the Court entered default judgment against defendant L. Dial on April 14, 2009 and requests an ex parte hearing "to determine the actual amount due to the petitioner by defendant L. Dial." However, in an order dated September 30, 2009, Dckt. No. 104, adopting the July 31, 2009, findings and recommendations, Dckt. No. 86, the Court noted that the default judgment that had been entered against L. Dial was no longer in effect, because it was based on the Second Amended Complaint, which was no longer the operative pleading. Accordingly, the Court ruledthat plaintiff's request for default judgment against L. Dial, dated February 6, 2009, was moot. Because no effective default judgment has been entered against L. Dial under the currently-operative Third Amended Complaint, plaintiff's request for an ex parte hearing to determine the amount due under such a judgment, Dckt. No. 83, must be denied.

III. Plaintiff's Motion for Reconsideration of TRO Ruling

In his "Motion for Leave to File a Motion for Reconsideration of Temporary Restraining Order," Dckt. No. 67, plaintiff asks the Court to reconsider its order of August 28, 2009, Dckt. No. 97, adopting the May 27, 2009 findings and recommendations, and denying plaintiff's request for interim injunctive relief to stop prison staff from interfering with his mail and legal documents.

Under Federal Rule of Civil Procedure 60(b), the Court may relieve a party from the effect of an order for:

(1) mistake, inadvertence, surprise, or excusable neglect;

(2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a new trial under Rule 59(b);

(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or ...


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