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Thomas Hightower v. Arnold Schwarzenegger

July 11, 2011

THOMAS HIGHTOWER,
PLAINTIFF,
v.
ARNOLD SCHWARZENEGGER, ET. AL.,
DEFENDANTS.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR CLARIFICATION OF RIGHTS REGARDING "BAD FAITH" ON THE PART OF DEFENDANTS and PLAINTIFF'S MOTION FOR SUBSTITUTION OF PARTIES DECEASED (Docs. 153, 154)

I. Procedural History

Plaintiff, Thomas A. Hightower ("Plaintiff"), is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on July 29, 2004. (Doc. 1.) On February 24, 2006, the Court dismissed Plaintiff's Complaint, with leave to amend, for failure to comply with Federal Rule of Civil Procedure 8(a). (Doc. 13.) Plaintiff filed a First Amended Complaint on June 28, 2006. (Doc. 21.) On March 8, 2007, the Court dismissed Plaintiff's First Amended Complaint, for failure to state cognizable claims, with leave to amend. (Doc. 23.)

On August 13, 2007, Plaintiff filed a Second Amended Complaint. (Doc. 31.) On March 19, 2008, the Court issued a Findings and Recommendations to dismiss non-cognizable claims and to allow service on cognizable claims, which was adopted on July 8, 2008. (Docs. 32, 38.)

Defendant Figueroa filed a motion to dismiss under Federal Rules of Civil Procedure*fn1 12(b) and 12(b)(6), on which a Findings and Recommendations to grant issued and was adopted. (Docs. 69, 116, 121.) Other Defendants also filed motions to dismiss under Rules 12(b) and 12(b)(6). (Docs. 75, 97.)

Upon reviewing those motions, it was determined that Plaintiff's Second Amended Complaint should be re-screened in light of the new pleading standards set forth by the Supreme Court's opinion in Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949 (2009). See Moss v. U.S. Secret Service, 572 F.3d 962, 968-69 (9th Cir. 2009), ref. Iqbal; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Second Amended Complaint was found to be replete with both general conclusions -- which were insufficient to state cognizable claims in light of Iqbal -- and multiple, unrelated claims in violation of Rule 18. Since it was possible that Plaintiff could amend to state factual allegations, without conclusions and unrelated claims, to correct the deficiencies in his pleading, the Second Amended Complaint was dismissed with leave to amend. (Docs. 123 and 129.)

After requesting and receiving extensions of time, Plaintiff filed the Third Amended Complaint in which he named Dr. Klarich, Dr. Nyguen, Dr. Deering, Dr. Wu, Capt. A. Santa Cruz, and then Governor Arnold Schwarzenegger as the only remaining Defendants in this action. (Doc. 141.) Upon recommendation subsequent to screening, it was ordered that this action proceed only on Plaintiff's claims against Defendants Dr. Klarich, Dr. Nyguen, Dr. Deering, Dr. Wu, and Capt. A. Santa Cruz under the Eight Amendment for deliberate indifference to his serious medical needs, and against Captain A. Santa Cruz for unconstitutional retaliation under the First Amendment. (Docs. 144, 148.) All other claims and Governor Schwarzenegger were dismissed with prejudice. (Id.)

Subsequently, Defendants Dr. Nyguen and Dr. Wu filed a motion to dismiss noting that Defendants Dr. Deering, Dr. Klarich, and Capt. Santa Cruz were deceased. (Doc. 151.) On December 13, 2010, Plaintiff filed a "Motion for Clarification of Rights Regarding 'Bad Faith' on the Part of Defendants" (Doc. 153) and a "Motion for Substitution of Parties Deceased" (Doc. 154). Defendants did not file an opposition, or responsive documents. These motions are deemed submitted. Local Rule 230(l).

II. Discussion

Plaintiff argues that Defendants, in their motion to dismiss (Doc. 151), brought up "for the first time" that Defendants Dr. Klarich, Dr. Deering , and Captain Santa Cruz are deceased. (Doc. 153, Mot. Re Bad Faith, 1:23-27.) Plaintiff seeks to have the parties compelled to attend a settlement conference (Doc. 153, Mot. Re Bad Faith, 3:4-7); a determination as to whether bad faith tactics were employed to conceal the deaths of Defendants Dr. Klarich, Dr. Deering, and Capt. Santa Cruz from Plaintiff (id., at 5:18-26); and to have the successors of Defendants Dr. Klarich, Dr. Deering, and Capt. Santa Cruz at California State Prison, Corcoran ("Corcoran II") substituted in place of the decedents (Doc. 154, Mot. For Sub.; Doc. 153, Mot. Re Bad Faith, 6:10-14).

A. Compelled Settlement Conference

Plaintiff seeks to compel the parties to attend a settlement conference as he has offered to settle this case twice, but was rebuffed by Defendants both times. (Doc. 153, Mot. Re Bad Faith, 1:21-23 & 3:4-7.)

Plaintiff has made two overtures toward settlement of this action. (Docs. 134, 142.) Following each such request by Plaintiff, Defendants were ordered to advise the court whether they believed, in good faith, that settlement in this case was a possibility and whether they were interested in having a settlement conference scheduled. (Docs. 136, 149). Defendants declined on both occasions. (Docs. 137, 150.)

As indicated in each order inquiring as to Defendants' position regarding settlement possibilities, every reasonable attempt to secure a referral to a judge for a settlement conference would be made only if both sides of the matter indicated a desire to so proceed, but even then, there was no guarantee that a settlement conference would occur. (Docs. 136, 149). A settlement conference will not be scheduled unless and until both parties indicate that they desire to explore a settlement. No party can be forced to settle a case, and the Court will not expend its limited resources on scheduling and conducting a settlement conference ...


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