Kennard Lee Davis v. JAMES WALKER, Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNARD LEE DAVIS,
Plaintiff-Appellant,
and
RONNIE TOLLIVER, Guardian Ad Litem
for Kennard Lee Davis; et al.,
Plaintiffs,
v.
JAMES WALKER, Warden; et al.,
Defendants-Appellees,
and
N. GRANNIS; et al.,
Defendants.
No. 19-16616
D.C. No.
2:08-cv-00593-KJM-DB
MEMORANDUM*
KENNARD LEE DAVIS,
Plaintiff-Appellant,
and
No. 19-16617
21-15232
D.C. No.
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.
FILED
APR 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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RONNIE TOLLIVER, Guardian Ad Litem
for Kennard Lee Davis; et al.,
Plaintiffs,
v.
JAMES WALKER, Warden; et al.,
Defendants-Appellees,
and
F. M. SCLUOD; et al.,
Defendants.
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).

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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

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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.

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