Opinion
Civ. No. S-03-1605 KJM DAD P
12-23-2013
ANDREW R. LOPEZ, Plaintiff, v. S. COOK, et al., Defendants.
ORDER
Plaintiff Andrew Lopez has filed a motion for reconsideration of his motion for judgment as a matter of law, and for declaratory and injunctive relief and for the appointment of counsel. After considering the motions, the court DENIES the motion for reconsideration and sets the case for status of counsel. I. BACKGROUND
Plaintiff filed his original complaint in this action on July 17, 2003. (ECF 1.) The jury trial commenced on April 4, 2011, with plaintiff proceeding pro se. The following claims proceeded to trial: 1) retaliation for plaintiff's exercise of his First Amendment rights to file grievances and engage in legal activities in plaintiff's placement and retention in administrative segregation, against defendants Cook and Garate; 2) retaliation for plaintiff's exercise of his First Amendment rights to file grievances and engage in legal activities based on defendant Bartos's allegedly saying that plaintiff engaged in "ratting" on officers in front of other inmates, against defendant Bartos; and 3) violation of procedural due process in plaintiff's placement and retention in administrative segregation and validation as a prison gang member, against defendants Babich, Cook, Garate, Gilliam, Johnson, McClure, Shaver and Vanderville. The jury returned its verdict on April 8, 2011, finding for defendants on all of plaintiff's claims. (ECF 301.)
Plaintiff moved for judgment as a matter of law on April 8, 2011 before the jury began its deliberations; this request was denied without prejudice. Plaintiff filed a renewed request for judgment as a matter of law on April 13, 2011. (ECF 315.) The court denied the motion on June 22, 2011. (ECF 319).
On July 18, 2011, plaintiff filed a notice of appeal. (ECF 327.)
On June 6, 2012, the Ninth Circuit appointed pro bono counsel Frank Busch, Esq., Bingham McCutchen LLP, to represent plaintiff/appellant. (Ninth Circuit Docket No. 11-16929, ECF 14.)
On July 17, 2013, the Ninth Circuit affirmed the judgment in part, reversed it in part, and remanded the case for further proceedings. (Ninth Circuit Docket No. 11-16929, ECF 50.) The Court of Appeals found this court had improperly dismissed a due process claim against defendant Harrison and had erred in rejecting plaintiff's proposed jury instruction concerning the timing of the notice and hearing relating to the gang validation charge. It found the combination of these two errors infected the judgment in favor of defendants Babich, Cook, Garate, Gilliam, Holmes, James, Martinez, McClure, Shaver and Vanderville on the due process claim and so reversed the judgment. The Court of Appeals found, however, that this court had properly denied plaintiff's motion for a judgment as a matter of law because the identity of the critical decision maker was a disputed question of fact. (Id. at 4.)
It also reversed the judgment against defendant Bartos on the retaliation claim based on an evidentiary ruling.
On September 18, 2013, plaintiff filed the instant motion, seeking reconsideration of the denial of his motion for judgment as a matter of law, again arguing he is entitled to judgment on his due process claim. (ECF 346.)
On September 30, 2013, the Ninth Circuit issued the mandate. (ECF 348.)
On December 2, 2013, plaintiff filed a motion for the appointment of counsel. II. ANALYSIS
Plaintiff relies on the Ninth Circuit's order in arguing he is entitled to reconsideration of the denial of his motion for judgment as a matter of law. That ruling found, however, that this court had not erred in denying the original motion; its order provides no basis for this court to reconsider its ruling.
Plaintiff has asked for the appointment of counsel. Accordingly, this case is set for a status of counsel hearing on January 31, 2014 at 3:30 p.m. Counsel Frank Busch, Esq., Bingham McCutchen LLP, Three Embarcadero Center, Suite 1800, San Francisco, California 94111 is directed to be present. The court will issue a writ of habeas corpus ad testificandum to allow plaintiff to appear via video-conferencing.
IT IS THEREFORE ORDERED:
1. Plaintiff's motion for reconsideration (ECF No. 346) is denied;
2. The case is set for a status of counsel hearing on January 31, 2014 at 3:30 p.m., with attorney Frank Busch directed to be present; and
3. The Clerk of the Court is directed to serve a copy of this order on attorney Busch at the address shown above, and to issue the necessary writs to have plaintiff appear for the January 31, 2014 proceeding via video link.
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UNITED STATES DISTRICT JUDGE