Person v. Andrewjeski

Opinion

WESTERN DISTRICT OF WASHINGTON ANTHONY SHRONE PERSON, Case No. 3:23-cv-5434-BJR-TLF Petitioner, v. ORDER MELISSA ANDREWJESKI, Respondent.

This matter comes before the Court on petitioner’s third motion to appoint counsel (Dkt. 51), second motion to expand the record (Dkt. 52), motion for reconsideration on petitioner’s motion to commence criminal proceedings (Dkt. 53), and third motion to compel evidence (Dkt. 57). Respondent has responded to petitioner’s motion to expand the record and petitioner’s motion to compel. Dkts. 54, 59. Petitioner’s cursive writing style makes it difficult to discern the handwritten portions of his motions. Petitioner is directed to print or type any future filings. The Court has already informed petitioner that his motions are premature because an answer has not yet been filed in this case. See Dkt. 48. After a review of the relevant record it appears that the motions remain premature and are denied. 1. Motion to appoint counsel The Court previously denied petitioner’s motion for an appointment of counsel because an answer had not yet been filed; therefore it was unclear if complex legal or factual issues exist that would potentially warrant appointment of counsel. Dkt. 48; See Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In petitioner’s most recent motion he states that Coyote Ridge Correction Center’s policy restricts prisoners from keeping their legal documents. Dkt. 51 at 2. While the Court is sympathetic to the difficulties of

litigating from prison, this reason does not address the lack of complex legal or factual issues or the fact that an answer has not yet been filed; therefore this motion is 2. Motion to expand the record Petitioner requests the Court to expand the record to include CIV-23-695-HE, a case that is apparently currently pending in the U.S. District Court for the Western District of Oklahoma. Dkt. 52 at 2. Respondent opposes the motion as premature. Dkt. 54. Because the answer has not yet been filed, it is not clear whether the information petitioner seeks to add to the record will be necessary. Therefore the motion is DENIED as premature.

3. Reconsideration on motion to commence criminal proceedings Petitioner requests the Court to reconsider its order denying petitioner’s motion to commence criminal proceedings as premature and appears to request the Court to “stay and abey” this motion and petitioner’s motion to compel until an answer has been filed, on October 6, 2023. Dkt. 53 at 1-2. Additionally, petitioner requests a designation of record of case number 1:23-cv-856, a case that is apparently pending in the United States District Court for the Western District of Michigan. Id. at 2. A private citizen lacks authority to initiate a prosecution, which can only be initiated in federal court by a United States Attorney. Rhodes v. Robinson, 399 F.App’x 160, 165 (9th Cir. 2010) (citing

Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir. 1964)). Therefore, petitioner’s motion is 4. Motion to compel evidence Petitioner lists twelve entities that he requests the Court to compel evidence

from. Dkt. 57 at 3-5. Respondent argues that petitioner has not shown good cause for discovery. Dkt. 59. “[T]here is no general right to discovery in habeas proceedings.” Rich v. Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999). A judge may authorize discovery with a showing of good cause. Id.; Rules Governing Section 2254 Cases, Rule 6(a), 28 U.S.C. foll. § 2254. To show good cause, the petitioner must set forth specific facts showing that discovery is appropriate. Deputy v. Taylor, 19 F.3d 1485, 1493 (3rd Cir. 1994) (citing Mayberry v. Petsock, 821 F.2d 179, 185 (3rd Cir. 1987)) Petitioner has not shown good cause and his motion is at best premature as respondent has not yet filed an answer in this case. Furthermore, before filing a motion

to compel discovery, Fed. R. Civ. P. 37 and LCR 37(a)(1) require the moving party to meet and confer with the party failing to make disclosure or discovery in an effort to resolve the dispute without court action. The meeting must be either face-to-face or via telephone. LCR 37(a)(1). Therefore, petitioner’s motion is DENIED for failure to show good cause. Petitioner’s motions are DENIED, for the reasons stated above. Petitioner continues to file numerous motions in this case; the Court has informed him on numerous occasions that it will not be able to consider these motions until an answer

has been filed and the Court is able to determine the legal and factual issues involved and determine whether an evidentiary hearing is required, or any necessary evidence is missing from the record. As such, petitioner should refrain from filing unnecessary, unwarranted, repetitive, or premature motions.

Dated this 20th day of September, 2023. A

Theresa L. Fricke United States Magistrate Judge