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Davis v. Walker

United States District Court, E.D. California

June 19, 2017

KENNARD LEE DAVIS, Plaintiff,
v.
JAMES WALKER, et al., Defendants. KENNARD LEE DAVIS, Plaintiff,
v.
JAMES WALKER, et al., Defendants.

          ORDER

         Plaintiff is a state prisoner proceeding in forma pauperis with civil rights actions under 42 U.S.C. § 1983. Plaintiff is proceeding in both actions through a guardian ad litem, Ronnie Tolliver, who was appointed in October 2014. See ECF Nos. 40; 81.[1] Since then, plaintiff has filed several pro se motions in each of the above actions; none of the motions has been presented to the court by plaintiff's guardian ad litem.[2] Following appointment of the guardian ad litem, plaintiff has twice been instructed that he may not file documents on his own behalf. See ECF Nos. 88, 101; 144, 157. Those orders are confirmed. See Fed. R. Civ. P. 17(c)(2); see also AT&T Mobility, LLC v. Yeager, 143 F.Supp.3d 1042 (E.D. Cal. 2015).

         Since September 22, 2016, plaintiff has filed several new pro se motions for appointment of counsel in each of these cases. ECF Nos. 111, 112, 116, 134, 137; 168, 169, 178, 195. The court has twice appointed counsel for plaintiff in these actions, and twice subsequently granted motions to withdraw. ECF Nos. 45, 71; 96, 127. As noted, plaintiff is now proceeding through a guardian ad litem and all motions for court orders on plaintiff's behalf must be presented through the guardian ad litem. For this reason, plaintiff's pro se motions for appointment of counsel will be denied.

         Plaintiff also has filed several pro se motions concerning the authority of the magistrate judge to preside over this action. ECF Nos. 106, 117, 124; 162, 173, 182. Because these motions have not been presented through the guardian ad litem, plaintiff's pro se motions concerning the authority of the magistrate judge will be denied. However, in view of this court's decision to file an answer in response to an order from the Ninth Circuit Court of Appeals, see ECF Nos. 126; 185, and the Circuit court's March 2, 2017 order, ECF Nos. 131;190, the court will withdraw the reference to the magistrate judge pending compliance with this court's May 18, 2017 order, ECF Nos. 132; 191, and until further order of the court.

         Plaintiff has filed several pro se motions seeking reconsideration of various orders entered in these actions. ECF Nos. 105, 119; 161, 163, 175. These motions also will be denied as not presented through the guardian ad litem.

         On May 18, 2017, this court issued an order directing plaintiff's mental health clinician to file a report on the current status of plaintiff's mental health and referred the matter to the court's Pro Bono Coordinator to confirm arrangements for appointment of a medical expert as provided by Federal Rule of Evidence 706. ECF Nos. 132; 191. This order was issued as part of the court's efforts to take all available steps to move these cases forward as required by order of the Ninth Circuit. ECF Nos. 35; 75. On May 30, 2017, plaintiff filed objections to that order. ECF Nos. 135; 193. Plaintiff's objections are overruled.

         On May 25, 2017, plaintiff filed a pro se motion for a medical evaluation. ECF Nos. 133; 192. In accordance with the May 18, 2017 order, the court anticipates appointment of a medical expert to conduct an independent medical examination of plaintiff. Plaintiff's pro se motion, again filed in violation of prior court orders, will be denied.

         On June 1, 2017, defendants filed in each case requests for an extension of time to respond to the court's May 18, 2017 order. ECF Nos. 136; 194. The court has granted those requests by separate orders. ECF Nos. 139, 196. Defendants shall continue to keep the court informed of any change in plaintiff's housing. See ECF Nos. 132; 191.

         Finally, following receipt of the information required by the court's May 18, 2017 order, appointment of an independent medical examiner, and receipt of a report from that examiner, the court will determine what further steps are required. Plaintiff's guardian ad litem, Mr. Tolliver, is informed that his participation is required by court order and will be necessary to a full and just disposition of this action. By this order, the court will direct Mr. Tolliver to complete and return the attached notice, confirming that he has received this order and confirming his current address of record by writing it in the space provided on the notice.

         In accordance with the above, IT IS HEREBY ORDERED that:

         1. Plaintiff's motions for appointment of counsel filed in Case No. 2:08-cv-0593 KJM DB, ECF Nos. 111, 112, 116, 134, and 137, are denied;

         2. Plaintiff's motions for appointment of counsel filed in Case No. 2:10-cv-2139 KJM DB, ECF Nos. 168, 169, 178 and 195, are denied;

         3. The reference of the above-captioned cases to the assigned magistrate judge is withdrawn until further order of court;

         4. Plaintiff's motions regarding the authority of the magistrate judge filed in Case No. 2:08-cv-0593 KJM DB, ECF Nos. 106, 117 and 124, are denied;

         5. Plaintiff's motions regarding the authority of the assigned magistrate judge filed in Case No. 2:10-2139 KJM DB, ...


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