Rufus McNeely v. Robert Fox, No. 5:2017cv01927 - Document 22 (C.D. Cal. 2018)
Court Description: ORDER ACCEPTING REPORT AND RECOMMENDATIONS by Judge Jesus G. Bernal Having reviewed de novo those portions of the R. & R. to which Petitioner constructively objected, the Court accepts the findings and recommendations of the Magistrate Judge. Acc ordingly, Respondent's motion to dismiss is GRANTED, Petitioner's stay motion is DENIED, and the FAP is DISMISSED without prejudice as wholly unexhausted. Petitioner's motion to withdraw the FAP "with the ability to properly file at a later date" (Pet'r's Mot. at 2) is DENIED. (See document for details.) (sbou)
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Rufus McNeely v. Robert Fox Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RUFUS McNEELY, Petitioner, 12 13 14 15 v. ROBERT FOX, Warden, Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 17-1927-JGB (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE Pursuant to 28 U.S.C. § 636, the Court has reviewed the 18 First Amended Petition, records on file, and Report and 19 Recommendation of U.S. Magistrate Judge. 20 Magistrate Judge recommended that the FAP be dismissed without 21 prejudice because its claims were wholly unexhausted and 22 Petitioner had not shown good cause for a stay under Rhines v. 23 Weber, 544 U.S. 269, 277 (2005). 24 that Petitioner had not provided any documentation of his alleged 25 visual impairment or demonstrated how “any lack of legal 26 expertise or any aspect of his incarceration prevented him from 27 exhausting his claims.” 28 On August 24, 2018, the Among other reasons, she noted (See R. & R. at 5-6.) On October 29, 2018, Petitioner filed a “Motion to Withdrawl 1 Dockets.Justia.com 1 [sic] Current Writ Without Prejudice, For Good Cause, To Refile 2 At Later Date,” contending that his request should be granted 3 because he “is in fact blind in his right eye,” he “has been in 4 special ed[.] all his years in school,” and the inmate who filed 5 the “current writ” for him “saw and took advantage of [his] 6 disability, desperation, and educational l[e]v[e]l to gain $250 7 for his assistance in filing this obvious[]ly lame writ.” 8 (Pet’r’s Mot. at 1-2.)1 9 he suffers from various medical problems in his right eye, He attached medical records showing that 10 including cataract and retinal detachment, all of which 11 apparently stem from an assault in 2014 or 2015. 12 His left eye is apparently unimpaired. 13 attached a CDCR “Mental Health Referral Chrono,” dated October 14 11, 2018, and evidently signed by a social worker, stating that 15 he has a history of special education, is “not able to advocate,” 16 and “gets taken advantage of when he pays for [other inmates] to 17 write for him.” 18 appointment of counsel, he attached a copy of his results on a 19 January 2017 TABE test, showing scores at about a third-grade 20 level.2 21 objections of his own to the R. & R. 22 23 (Id. at 7.) (Id. at 3-6.) (See id. at 3.) He also In a November 1, 2018 motion for Respondent did not respond to either motion or file Thus, although Petitioner’s motion ostensibly seeks voluntary dismissal of this action, its contents and attachments 24 25 26 1 For nonconsecutively paginated documents, the Court uses the pagination provided by its Case Management/Electronic Case Filing system. 27 2 28 The Court denied the motion for appointment of counsel on November 5. 2 1 and the documents he attached to his motion for appointment of 2 counsel suggest that he may have intended both motions as 3 objections to the R. & R.’s finding on the absence of good cause 4 for a Rhines stay. 5 (2007) (per curiam) (“A document filed pro se is to be liberally 6 construed[.]” (citation omitted)). 7 documents he submitted do not explain how the injuries to his 8 right eye affected his ability to exhaust his claims, 9 particularly given that he apparently has no impairment in his See Erickson v. Pardus, 551 U.S. 89, 94 To the extent that is so, the 10 left eye. 11 306725, at *19 (N.D. Cal. Jan. 5, 2018) (petitioner’s medical 12 records failed to show that his visual impairment prevented him 13 from timely filing federal petition). 14 signed by an inmate who declares that he “authored” it on 15 Petitioner’s behalf “free of any charge or favors of any kind” 16 (Pet’r’s Mot. at 2), supporting the Magistrate Judge’s finding 17 that Petitioner’s educational level and reliance on inmate 18 assistance failed to provide good cause for a Rhines stay. 19 Cf. Jacobs v. Fox, No. 15-cv-05046-YGR (PR), 2018 WL Moreover, his motion is Having reviewed de novo those portions of the R. & R. to 20 which Petitioner constructively objected, the Court accepts the 21 findings and recommendations of the Magistrate Judge. 22 Accordingly, Respondent’s motion to dismiss is GRANTED, 23 Petitioner’s stay motion is DENIED, and the FAP is DISMISSED 24 without prejudice as wholly unexhausted. 25 withdraw the FAP “with the ability to properly file at a later 26 date” (Pet’r’s Mot. at 2) is DENIED because the Court cannot at 27 28 3 Petitioner’s motion to 1 this time assess the timeliness or procedural regularity of any 2 future petition Petitioner may choose to file. 3 4 5 DATED: November 25, 2018 JESUS G. BERNAL U.S. DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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