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Becker v. Carney

United States District Court, W.D. Washington, Tacoma

July 23, 2019

ASHER JAMES BECKER, Plaintiff,
v.
BRENT CARNEY, et al., Defendants.

          ORDER REOPENING DISCOVERY, RESETTING THE DISPOSITIVE MOTION DEADLINE, AND DENYING MOTION FOR APPOINTMENT OF COUNSEL

          J. RICHARD CREATURA UNITED STATES MAGISTRATE JUDGE

         Plaintiff proceeds pro se in this action brought under 42 U.S.C. § 1983, which the District Court has referred to the undersigned pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B) and local Magistrate Judge Rules MJR 1, 3, and 4. The matter is before the Court following remand from the Ninth Circuit Court of Appeals and on plaintiff's motion for the appointment of counsel (Dkt. 190) and defendants' motion to re-open discovery and to set a new dispositive motion deadline. Dkt. 194.

         Because good cause exists to reopen discovery and because further dispositive motion practice is not foreclosed by the Ninth Circuit's directions on remand and would assist in the efficient resolution of this matter, the Court grants defendants' motion. Because plaintiff has failed to show the exceptional circumstances necessary to appoint counsel, the Court denies his motion for the appointment of counsel.

         BACKGROUND

         Plaintiff, who is housed at the Coyote Ridge Corrections Center, initiated this matter in April 2016. See Dkt. 1. Plaintiff named a variety of Department of Corrections (DOC) officials and employees, including Joe Williamson (a food service manager), Kerri McTarsney (a grievance coordinator), and Dale Caldwell (a grievance program manager). See Dkt. 55, at 26. Plaintiff alleged a variety of claims, including-as relevant here-retaliation in violation of the First Amendment, negligence, and “[o]fficial [m]isconduct, ” arising from incidents that allegedly occurred at the Stafford Creek Corrections Center. See Dkt. 55, at 21-24. Subsequently, the District Court granted defendants' motion for summary judgment of all plaintiff's claims and dismissed the matter. See Dkt. 170.

         Plaintiff appealed the summary judgment dismissal of his claims. See Dkt. 188. The Ninth Circuit affirmed the District Court's summary judgment order except that the Ninth Circuit held that there was a genuine issue of material fact regarding plaintiff's retaliation claim against defendant Williamson. See Becker v. Carney, 765 Fed. App'x 158, 159 (9th Cir. 2019) (memorandum opinion). Specifically, the Ninth Circuit held that a fellow prisoner's sworn declaration (“the McDaniels declaration”) that plaintiff had submitted created a genuine issue of material fact regarding whether defendant Williamson retaliated against plaintiff. See id.

         The Ninth Circuit reversed and remanded for further proceedings on plaintiff's retaliation claim against defendant Williamson and for the District Court to reconsider whether it would exercise supplemental jurisdiction over plaintiff's state law claims. See Becker, 765 Fed. App'x at 159. In an order denying rehearing, the Ninth Circuit further stated that “[t]o the extent that [plaintiff] seeks clarification on the status of the retaliation claim against defendants McTarsney and Caldwell, which is related to the retaliation claim against defendant Williamson, we clarify now that the retaliation against McTarsney and Caldwell can be considered by the district court on remand.” See Order Denying Petition for Panel Rehearing at 1-2, Becker, No. 18-35373, 765 Fed.Appx. 158 (9th Cir. May 29, 2019).

         Plaintiff now requests the appointment of trial counsel. See Dkt. 190, at 2. Defendants McTarsney, Caldwell, and Williamson seek to re-open discovery and re-set the dispositive motion deadline. See Dkt. 194.

         DISCUSSION

         I. Defendants' Request to Reopen Discovery and Reset Dispositive Motions Deadline

         A. Ninth Circuit's Mandate

         Plaintiff asserts that this matter has been referred for trial by the Ninth Circuit. See Dkt. 19, at 4.

         Upon return of the mandate, “the district court cannot give relief beyond the scope of that mandate”; however, “‘it may act on matters left open by the mandate.'” Caldwell v. Puget Sound Elec. Apprenticeship & Training Trust, 824 F.2d 765, 767 (9th Cir. 1987) (quoting In re Sanford Fork & Tool, 160 U.S. 247, 256 (1895)). Here, the Ninth Circuit's mandate does not state that a trial is necessary. Rather, the Ninth Circuit directed “further proceedings” on plaintiff's retaliation claims against defendants Williamson, McTarsney, and Caldwell, including “reconsider[ation] of whether [to] exercise supplemental jurisdiction over [plaintiff's] state law claims.” See Becker, 765 Fed. App'x at 159.

         Nor did the Ninth Circuit effectively require a trial when it stated that McDaniels' declaration raised a genuine issue of material fact. The Ninth Circuit held that this Court had erred when it determined that plaintiff had no “proof as to an essential element of his claim” of retaliation. See Dkt. 162, at 13. The lack of proof to support an essential element of plaintiff's claim is only one theory under which a defendant's summary judgment motion ...


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