Kennard Davis v. James Walker

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 12, 2022
• Docket: 19-16616
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 12 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

KENNARD LEE DAVIS, No. 19-16616

Plaintiff-Appellant, D.C. No. 2:08-cv-00593-KJM-DB and

RONNIE TOLLIVER, Guardian Ad Litem MEMORANDUM* for Kennard Lee Davis; et al.,

Plaintiffs,

v.

JAMES WALKER, Warden; et al.,

Defendants-Appellees,

and

N. GRANNIS; et al.,

Defendants.

KENNARD LEE DAVIS, No. 19-16617 21-15232 Plaintiff-Appellant, D.C. No. and 2:10-cv-02139-KJM-DB

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. RONNIE TOLLIVER, Guardian Ad Litem for Kennard Lee Davis; et al.,

F. M. SCLUOD; et al.,

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Submitted April 12, 2022**

Before: D.W. NELSON, FERNANDEZ, and SILVERMAN, Circuit Judges.

Kennard Lee Davis appeals pro se the district court’s orders administratively

closing his two civil rights actions and denying his motion to reopen. We have

jurisdiction under 28 U.S.C. § 1291 and the collateral order doctrine. See Davis v.

Walker, 745 F.3d 1303, 1308-10 (9th Cir. 2014). We review the district court’s

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 administrative closure order for an abuse of discretion. Harris v. Mangum, 863

F.3d 1133, 1138 (9th Cir. 2017). We affirm in part and vacate and remand in part.

In appeal Nos. 19-16616 and 19-16617, we affirm the district court’s

administrative closure order. The district court properly exercised its discretion in

granting motions to withdraw filed by Davis’s guardian ad litem and counsel

appointed to represent the guardian pursuant to Federal Rule of Civil Procedure

17(c)(2). See Cal. R. Prof. Conduct 1.16(b)(4). The district court also properly

declined to appoint a new guardian or new counsel, when, on remand from this

court, the district court already had appointed two attorneys to represent Davis,

three guardians, and an attorney to represent two of the guardians, and, under the

circumstances, it was unlikely that another person would be willing to serve as

guardian or counsel. The district court therefore properly exercised its discretion

in administratively closing the cases for as long as Davis remains incompetent.

See Fed. R. Civ. P. 17(c)(2) (court must appoint a guardian ad litem or issue

another appropriate order to protect an incompetent person who is unrepresented);

Davis, 745 F.3d at 1311-12.

In appeal No. 21-15232, we vacate the district court’s order denying Davis’s

motion to reopen for lack of jurisdiction. Davis sought reopening of proceedings

and a reassessment of his competency, rather than reconsideration of the

administrative closure order. Accordingly, the district court had jurisdiction to

3 consider Davis’s motion. See Davis, 745 F.3d at 1311 (holding that periodic

reassessment of competency would be appropriate); cf. Nat. Res. Def. Council, Inc.

v. Southwest Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) (“Once a notice of

appeal is filed, the district court is divested of jurisdiction over the matters being

appealed.”).

In appeal Nos. 19-16616 and 19-16617, the district court’s administrative

closure order is AFFIRMED. In appeal No. 21-15232, we VACATE the district

court’s order and REMAND for the district court to consider Davis’s motions to

reopen proceedings and reassess his competency to proceed.

Davis’s motions for reimbursement of costs (Docket Entry No. 53 in 19-

16616; Docket Entry No. 51 in 19-16617; Docket Entry Nos. 15 and 16 in 21-

15232) are denied. The parties shall bear their own costs on appeal.