1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GEORGE HAMILTON, Case No. 1:21-cv-01316-AWI-EPG (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 12 v. (ECF Nos. 14, 19) 13 KATHLEEN ALLISON, et al., ORDER REQUIRING PLAINTIFF TO PAY 14 Defendants. FILING FEE IN FULL WITHIN THIRTY DAYS 15 ORDER DENYING MOTION FOR 16 RECONSIDERATION 17 (ECF No. 24) 18 19 George Hamilton (“Plaintiff”) is a state prisoner proceeding pro se with this action. This 20 action was transferred to the United States District Court for the Eastern District of California on 21 August 30, 2021, and the matter was referred to a United States Magistrate Judge pursuant to 28 22 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On September 3, 2021, the assigned magistrate judge entered findings and 24 recommendations, recommending that “Plaintiff’s application to proceed in forma pauperis be 25 DENIED” and that “Plaintiff be directed to pay the $402.00 filing fee in full if he wants to 26 proceed with this action.” (ECF No. 19, p. 5). 27 Plaintiff was provided an opportunity to file objections to the findings and 28 recommendations. Plaintiff filed his objections on September 20, 2021. (ECF No. 23). 1 On September 20, 2021, after the Court issued its findings and recommendations, Plaintiff 2 filed a motion for reconsideration of the Northern District of California’s dismissal order and 3 transfer order. (ECF No. 24). On September 23, 2021, Plaintiff filed a supplemental brief in 4 support of his motion for reconsideration. (ECF No. 25).1 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 6 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 7 the magistrate judge’s findings and recommendations are supported by the record and by proper 8 analysis. 9 Plaintiff argues that this court does not have jurisdiction to enforce the orders entered in 10 Scholl v. Mnuchin, 494 F. Supp. 3d 661 (N.D. Cal. 2020), and asks that the case be transferred 11 back to the Northern District of California. However, the Northern District has already ordered 12 that this case be transferred to this district because the claims and defendants are not the same as 13 those in Scholl. Instead, the majority of the defendants listed in Plaintiff’s complaint work at 14 Kern Valley State Prison, which is in this district. The Northern District held, before transferring 15 this case to this court, that: “In Scholl v. Mnuchin, 494 F. Supp. 3d 661 (N.D. Cal. 2020) this 16 court found that the Department of Treasury and Internal Revenue Service could not withhold 17 advance refunds or credits to individuals solely because they were incarcerated. Id. at 692. To 18 the extent plaintiff requests to proceed with his claim in this court and the Scholl case, any such 19 request is denied. Plaintiff’s claims involve entirely different defendants located in the Eastern 20 District of California. Plaintiff’s claim involves interference by prison officials in plaintiff 21 receiving his EIP, not the issuance of funds by the Scholl defendants and the CARES Act.” (ECF 22 No. 15, pgs. 1-2). 23 The Court sees no reason to depart from the Northern District’s finding that Plaintiff’s 24 claims against the named defendants do not belong in the Scholl class action case. United States 25 v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (“Under the law of the case doctrine, a court is 26 generally precluded from reconsidering an issue that has already been decided by the same court, 27 1 Plaintiff sent these filings to the Northern District. However, they were transferred to the Eastern District 28 and docketed on October 6, 2021. 1 or a higher court in the identical case. The doctrine is not a limitation on a tribunal’s power, but 2 rather a guide to discretion. A court may have discretion to depart from the law of the case 3 where: 1) the first decision was clearly erroneous; 2) an intervening change in the law has 4 occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances 5 exist; or 5) a manifest injustice would otherwise result. Failure to apply the doctrine of the law of 6 the case absent one of the requisite conditions constitutes an abuse of discretion.”) (citations and 7 internal quotation marks omitted). 8 In Scholl v. Mnuchin, 494 F. Supp. 3d 661 (N.D. Cal. 2020) (Scholl II), appeal dismissed 9 (Dec. 11, 2020), the Northern District of California held that the CARES Act did not permit 10 incarcerated persons to be denied EIPs solely because of their incarcerated status: 11 The court has determined above that the IRS’s decision to exclude incarcerated individuals from receiving an EIP solely on the basis of their status as incarcerated 12 individuals violated the APA. The court finds that declaratory relief is a proper remedy for defendants’ violation of the APA. Thus, the court finds and declares 13 that title 26 U.S.C. § 6428 does not authorize defendants to withhold advance refunds or credits from class members solely because they are or were 14 incarcerated. The court further finds and declares that defendants’ policy that 15 persons who are or were incarcerated at any time in 2020 were ineligible for advance refunds under the Act is both arbitrary and capricious and not in 16 accordance with law. 17 Id. at 692. The court then issued an injunction against “Defendants Steven Mnuchin, in his 18 official capacity as the Secretary of the U.S. Department of Treasury; Charles Rettig, in his 19 official capacity as U.S. Commissioner of Internal Revenue; the U.S. Department of the Treasury; 20 the U.S. Internal Revenue Service; and the United States of America,” enjoining them from 21 “withholding benefits pursuant to 26 U.S.C. § 6428 from plaintiffs or any class member on the 22 sole basis of their incarcerated status.” Id. at 692-93. 23 Plaintiff’s claims in this case are not against the defendants in Scholl. In Scholl, the 24 defendants were the Department of Treasury, IRS, and United States. In this case, they are prison 25 officials who work for the California Department of Corrections and Rehabilitation. Also, the 26 issues are different. The injunction in Scholl concerned the denial of benefits under the CARES 27 Act to all incarcerated prisoners. Here, the issue is the alleged withholding of debit card(s) that 28 1 were issued to Plaintiff by Kern Valley State Prison (“KVSP”) officials.2 2 As to Plaintiff’s eighth and ninth claims against KVSP officials, Plaintiff is bringing 3 claims under 42 U.S.C. § 1983 for violation of the Fourteenth Amendment of the Constitution. 4 The Court has jurisdiction over these claims. 28 U.S.C. § 1331
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GEORGE HAMILTON, Case No. 1:21-cv-01316-AWI-EPG (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 12 v. (ECF Nos. 14, 19) 13 KATHLEEN ALLISON, et al., ORDER REQUIRING PLAINTIFF TO PAY 14 Defendants. FILING FEE IN FULL WITHIN THIRTY DAYS 15 ORDER DENYING MOTION FOR 16 RECONSIDERATION 17 (ECF No. 24) 18 19 George Hamilton (“Plaintiff”) is a state prisoner proceeding pro se with this action. This 20 action was transferred to the United States District Court for the Eastern District of California on 21 August 30, 2021, and the matter was referred to a United States Magistrate Judge pursuant to 28 22 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 On September 3, 2021, the assigned magistrate judge entered findings and 24 recommendations, recommending that “Plaintiff’s application to proceed in forma pauperis be 25 DENIED” and that “Plaintiff be directed to pay the $402.00 filing fee in full if he wants to 26 proceed with this action.” (ECF No. 19, p. 5). 27 Plaintiff was provided an opportunity to file objections to the findings and 28 recommendations. Plaintiff filed his objections on September 20, 2021. (ECF No. 23). 1 On September 20, 2021, after the Court issued its findings and recommendations, Plaintiff 2 filed a motion for reconsideration of the Northern District of California’s dismissal order and 3 transfer order. (ECF No. 24). On September 23, 2021, Plaintiff filed a supplemental brief in 4 support of his motion for reconsideration. (ECF No. 25).1 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 6 de novo review of the case. Having carefully reviewed the entire file, the Court concludes that 7 the magistrate judge’s findings and recommendations are supported by the record and by proper 8 analysis. 9 Plaintiff argues that this court does not have jurisdiction to enforce the orders entered in 10 Scholl v. Mnuchin, 494 F. Supp. 3d 661 (N.D. Cal. 2020), and asks that the case be transferred 11 back to the Northern District of California. However, the Northern District has already ordered 12 that this case be transferred to this district because the claims and defendants are not the same as 13 those in Scholl. Instead, the majority of the defendants listed in Plaintiff’s complaint work at 14 Kern Valley State Prison, which is in this district. The Northern District held, before transferring 15 this case to this court, that: “In Scholl v. Mnuchin, 494 F. Supp. 3d 661 (N.D. Cal. 2020) this 16 court found that the Department of Treasury and Internal Revenue Service could not withhold 17 advance refunds or credits to individuals solely because they were incarcerated. Id. at 692. To 18 the extent plaintiff requests to proceed with his claim in this court and the Scholl case, any such 19 request is denied. Plaintiff’s claims involve entirely different defendants located in the Eastern 20 District of California. Plaintiff’s claim involves interference by prison officials in plaintiff 21 receiving his EIP, not the issuance of funds by the Scholl defendants and the CARES Act.” (ECF 22 No. 15, pgs. 1-2). 23 The Court sees no reason to depart from the Northern District’s finding that Plaintiff’s 24 claims against the named defendants do not belong in the Scholl class action case. United States 25 v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (“Under the law of the case doctrine, a court is 26 generally precluded from reconsidering an issue that has already been decided by the same court, 27 1 Plaintiff sent these filings to the Northern District. However, they were transferred to the Eastern District 28 and docketed on October 6, 2021. 1 or a higher court in the identical case. The doctrine is not a limitation on a tribunal’s power, but 2 rather a guide to discretion. A court may have discretion to depart from the law of the case 3 where: 1) the first decision was clearly erroneous; 2) an intervening change in the law has 4 occurred; 3) the evidence on remand is substantially different; 4) other changed circumstances 5 exist; or 5) a manifest injustice would otherwise result. Failure to apply the doctrine of the law of 6 the case absent one of the requisite conditions constitutes an abuse of discretion.”) (citations and 7 internal quotation marks omitted). 8 In Scholl v. Mnuchin, 494 F. Supp. 3d 661 (N.D. Cal. 2020) (Scholl II), appeal dismissed 9 (Dec. 11, 2020), the Northern District of California held that the CARES Act did not permit 10 incarcerated persons to be denied EIPs solely because of their incarcerated status: 11 The court has determined above that the IRS’s decision to exclude incarcerated individuals from receiving an EIP solely on the basis of their status as incarcerated 12 individuals violated the APA. The court finds that declaratory relief is a proper remedy for defendants’ violation of the APA. Thus, the court finds and declares 13 that title 26 U.S.C. § 6428 does not authorize defendants to withhold advance refunds or credits from class members solely because they are or were 14 incarcerated. The court further finds and declares that defendants’ policy that 15 persons who are or were incarcerated at any time in 2020 were ineligible for advance refunds under the Act is both arbitrary and capricious and not in 16 accordance with law. 17 Id. at 692. The court then issued an injunction against “Defendants Steven Mnuchin, in his 18 official capacity as the Secretary of the U.S. Department of Treasury; Charles Rettig, in his 19 official capacity as U.S. Commissioner of Internal Revenue; the U.S. Department of the Treasury; 20 the U.S. Internal Revenue Service; and the United States of America,” enjoining them from 21 “withholding benefits pursuant to 26 U.S.C. § 6428 from plaintiffs or any class member on the 22 sole basis of their incarcerated status.” Id. at 692-93. 23 Plaintiff’s claims in this case are not against the defendants in Scholl. In Scholl, the 24 defendants were the Department of Treasury, IRS, and United States. In this case, they are prison 25 officials who work for the California Department of Corrections and Rehabilitation. Also, the 26 issues are different. The injunction in Scholl concerned the denial of benefits under the CARES 27 Act to all incarcerated prisoners. Here, the issue is the alleged withholding of debit card(s) that 28 1 were issued to Plaintiff by Kern Valley State Prison (“KVSP”) officials.2 2 As to Plaintiff’s eighth and ninth claims against KVSP officials, Plaintiff is bringing 3 claims under 42 U.S.C. § 1983 for violation of the Fourteenth Amendment of the Constitution. 4 The Court has jurisdiction over these claims. 28 U.S.C. § 1331 (“The district courts shall have 5 original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the 6 United States.”); see also and 1343(a)(3) (“The district courts shall have original jurisdiction of 7 any civil action authorized by law to be commenced by any person: [] To redress the deprivation, 8 under color of any State law, statute, ordinance, regulation, custom or usage, of any right, 9 privilege or immunity secured by the Constitution of the United States or by any Act of Congress 10 providing for equal rights of citizens or of all persons within the jurisdiction of the United 11 States.”). 12 As to Plaintiff’s request for appointment of pro bono counsel to address the jurisdictional 13 issue, Plaintiff’s request will be denied. 14 Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. 15 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952 16 (9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28 17 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa, 18 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the Court may request 19 the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. 20 Without a reasonable method of securing and compensating counsel, the Court will seek 21 volunteer counsel only in the most serious and exceptional cases. In determining whether 22 “exceptional circumstances exist, a district court must evaluate both the likelihood of success of 23 the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the 24 complexity of the legal issues involved.” Id. (citation and internal quotation marks omitted). 25 The Court will not order appointment of pro bono counsel at this time. The Court has 26 2 It appears that the majority of Plaintiff’s complaint revolves around allegations that the defendants named 27 in this action violated court order(s) issued in Scholl. The above analysis would appear to resolve such claims against Plaintiff. Plaintiff should consider the above analysis as he determines how or whether he wishes to proceed in this 28 case. 1 reviewed the record in this case, and at this time the Court is unable to make a determination that 2 Plaintiff is likely to succeed on the merits of his claims. Moreover, it appears that Plaintiff can 3 adequately articulate his claims. 4 Finally, as to Plaintiff’s motion for reconsideration, it will be denied. 5 Under Federal Rule of Civil Procedure 60(b), 6 [o]n motion and just terms, the court may relieve a party or its legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, 7 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered in time to move for a 8 new trial under Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the 9 judgment is void; (5) the judgment has been satisfied, released, or discharged; it is 10 based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. 11 Fed. R. Civ. P. 60(b). 12 As to Rule 60(b)(6), Plaintiff “must demonstrate both injury and circumstances beyond his 13 control that prevented him from proceeding with the action in a proper fashion.” Harvest v. 14 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (citation and internal quotation marks omitted). 15 Additionally, Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 16 injustice and is to be utilized only where extraordinary circumstances prevented a party from 17 taking timely action to prevent or correct an erroneous judgment.” (Id.) (citation and internal 18 quotation marks omitted). 19 Plaintiff seeks reconsideration on under Federal Rule of Civil Procedure 60(b)(4) and 20 60(b)(6). 21 First, Plaintiff asks the Court to reconsider the dismissal order that was issued on July 30, 22 2021. However, the case was reopened on August 30, 2021. (ECF No. 15). Thus, there does not 23 appear to be anything to reconsider. 24 Second, Plaintiff asks the Court to reconsider the transfer order. Plaintiff argues that the 25 transfer order is void because the Eastern District lacks subject matter over jurisdiction over the 26 Scholl action. However, assuming without deciding that Rule 60(b)(4) could have application to 27 the transfer order, Plaintiff has not sufficiently shown that the order was void. As discussed 28 1 above, the Eastern District has jurisdiction over this action, which involves different defendants 2 | than the Scholl action. 3 As to Plaintiff's argument that the transfer order should be reconsidered under Rule 4 | 60(b)6), Plaintiff has failed to show that he is entitled to relief under this section. 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The findings and recommendations issued on September 3, 2021, (ECF No. 19), 7 are adopted in full; 8 2. Plaintiffs application to proceed in forma pauperis, (ECF No. 14), is denied; 9 3. If Plaintiff wants to proceed with this action, Plaintiff shall pay the $402 filing fee 10 in full within thirty (30) days of the date of service of this order; 11 4. If Plaintiff fails to pay the filing fee in full within thirty (30) days, this action will 12 be dismissed without prejudice and without further notice;? 13 5. Plaintiff's request for appointment of pro bono counsel is denied; and 14 6. Plaintiff's motion for reconsideration, (ECF No. 24), is denied. 15 16 IT IS SO ORDERED. 17 || Dated: _ October 7, 2021 —= Z : Cb it — SENIOR DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 3 To reiterate, if Plaintiff wishes to proceed to litigate this action, he will be required to pay the filing fee. If Plaintiff does not wish to proceed with this action, he may either file a Rule 41(a)(1) voluntary dismissal or not pay 28 | the filing fee, which will result in the dismissal of this case.