Person v. Andrewjeski

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 ANTHONY SHRONE PERSON, Case No. 3:23-cv-5434-BJR-TLF 7 Petitioner, v. ORDER 8 MELISSA ANDREWJESKI, 9 Respondent. 10

11 This matter comes before the Court on petitioner’s third motion to appoint 12 counsel (Dkt. 51), second motion to expand the record (Dkt. 52), motion for 13 reconsideration on petitioner’s motion to commence criminal proceedings (Dkt. 53), and 14 third motion to compel evidence (Dkt. 57). Respondent has responded to petitioner’s 15 motion to expand the record and petitioner’s motion to compel. Dkts. 54, 59. 16 Petitioner’s cursive writing style makes it difficult to discern the handwritten 17 portions of his motions. Petitioner is directed to print or type any future filings. The Court 18 has already informed petitioner that his motions are premature because an answer has 19 not yet been filed in this case. See Dkt. 48. After a review of the relevant record it 20 appears that the motions remain premature and are denied. 21 1. Motion to appoint counsel 22 The Court previously denied petitioner’s motion for an appointment of counsel 23 because an answer had not yet been filed; therefore it was unclear if complex legal or 24 1 factual issues exist that would potentially warrant appointment of counsel. Dkt. 48; See 2 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). In petitioner’s most recent motion 3 he states that Coyote Ridge Correction Center’s policy restricts prisoners from keeping 4 their legal documents. Dkt. 51 at 2. While the Court is sympathetic to the difficulties of

5 litigating from prison, this reason does not address the lack of complex legal or factual 6 issues or the fact that an answer has not yet been filed; therefore this motion is 7 DENIED. 8 2. Motion to expand the record 9 Petitioner requests the Court to expand the record to include CIV-23-695-HE, a 10 case that is apparently currently pending in the U.S. District Court for the Western 11 District of Oklahoma. Dkt. 52 at 2. Respondent opposes the motion as premature. Dkt. 12 54. Because the answer has not yet been filed, it is not clear whether the information 13 petitioner seeks to add to the record will be necessary. Therefore the motion is DENIED 14 as premature.

15 3. Reconsideration on motion to commence criminal proceedings 16 Petitioner requests the Court to reconsider its order denying petitioner’s motion to 17 commence criminal proceedings as premature and appears to request the Court to 18 “stay and abey” this motion and petitioner’s motion to compel until an answer has been 19 filed, on October 6, 2023. Dkt. 53 at 1-2. Additionally, petitioner requests a designation 20 of record of case number 1:23-cv-856, a case that is apparently pending in the United 21 States District Court for the Western District of Michigan. Id. at 2. A private citizen lacks 22 authority to initiate a prosecution, which can only be initiated in federal court by a United 23 States Attorney. Rhodes v. Robinson, 399 F.App’x 160, 165 (9th Cir. 2010) (citing

24 1 Keenan v. McGrath, 328 F.2d 610, 611 (1st Cir. 1964)). Therefore, petitioner’s motion is 2 DENIED. 3 4. Motion to compel evidence 4 Petitioner lists twelve entities that he requests the Court to compel evidence

5 from. Dkt. 57 at 3-5. Respondent argues that petitioner has not shown good cause for 6 discovery. Dkt. 59. 7 “[T]here is no general right to discovery in habeas proceedings.” Rich v. 8 Calderon, 187 F.3d 1064, 1068 (9th Cir. 1999). A judge may authorize discovery with a 9 showing of good cause. Id.; Rules Governing Section 2254 Cases, Rule 6(a), 28 U.S.C. 10 foll. § 2254. To show good cause, the petitioner must set forth specific facts showing 11 that discovery is appropriate. Deputy v. Taylor, 19 F.3d 1485, 1493 (3rd Cir. 1994) 12 (citing Mayberry v. Petsock, 821 F.2d 179, 185 (3rd Cir. 1987)) 13 Petitioner has not shown good cause and his motion is at best premature as 14 respondent has not yet filed an answer in this case. Furthermore, before filing a motion

15 to compel discovery, Fed. R. Civ. P. 37 and LCR 37(a)(1) require the moving party to 16 meet and confer with the party failing to make disclosure or discovery in an effort to 17 resolve the dispute without court action. The meeting must be either face-to-face or via 18 telephone. LCR 37(a)(1). 19 Therefore, petitioner’s motion is DENIED for failure to show good cause. 20 CONCLUSION 21 Petitioner’s motions are DENIED, for the reasons stated above. Petitioner 22 continues to file numerous motions in this case; the Court has informed him on 23 numerous occasions that it will not be able to consider these motions until an answer

24 1 has been filed and the Court is able to determine the legal and factual issues involved 2 and determine whether an evidentiary hearing is required, or any necessary evidence is 3 missing from the record. As such, petitioner should refrain from filing unnecessary, 4 unwarranted, repetitive, or premature motions.

5 6 7 Dated this 20th day of September, 2023. 8 9 10 A

Theresa L. Fricke 11 United States Magistrate Judge

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