Barnett v. Norman, et al.

Filing 336

ORDER DIRECTING PLAINTIFF TO RESPOND TO COUNSEL'S MOTION TO WITHDRAW WITH A DECLARATION FILED UNDER SEAL RE 335 AND DIRECTING CLERK'S OFFICE TO PROVIDE PLAINTIFF A COPY OF THIS ORDER AND PERMITTING FILING A DOCUMENT UNDER SEAL signed by Magistrate Judge Barbara A. McAuliffe on 9/18/2015. (Filing Deadline: 10/5/2015).(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TROAS V. BARNETT,
Plaintiff,

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v.
MARTIN GAMBOA, et al.,
Defendants.

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Case No.: 1:05-cv-01022-BAM PC
ORDER DIRECTING PLAINTIFF TO RESPOND
TO COUNSEL’S MOTION TO WITHDRAW
WITH A DECLARATION FILED UNDER SEAL
(ECF No. 335)
ORDER DIRECTING CLERK’S OFFICE TO
PROVIDE PLAINTIFF A COPY OF THIS ORDER
AND PERMITTING FILING A DOCUMENT
UNDER SEAL
FOURTEEN-DAY DEADLINE

Plaintiff Troas Barnett (“Plaintiff”) is a state prisoner proceeding in this civil rights action

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pursuant to 42 U.S.C. § 1983. On April 27, 2015, Angelina Z. Bradley was appointed as volunteer pro

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bono counsel to represent Plaintiff at trial. (ECF No. 325.) Currently this matter is set for a jury trial

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on February 23, 2016 at 8:30 a.m., in Courtroom 8 (BAM). (ECF No. 330.)

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On September 15, 2015, Plaintiff filed a motion on his own behalf, with a supporting

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declaration, requesting that the Court discharge Ms. Bradley from her duties as his counsel and

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“reinstate” his pro se status. (ECF No. 333.) On September 17, 2015, the Court directed counsel to

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meet with Plaintiff and discuss her continued representation of him, and to file a status report

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informing the Court whether the representation could continue or whether she would be seeking leave

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to withdraw as counsel. (ECF No. 334.)

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Currently before the Court is counsel’s combined status report and motion to withdraw as
counsel of record, filed September 17, 2015. (ECF No. 335.) In her combined status report and
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motion, counsel explains that she spoke with Plaintiff via telephone on several issues regarding her

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representation of him. (Id. at 1-2.) At Plaintiff’s request, counsel has moved for withdrawal as counsel

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of record, stating in support of her motion that the relationship has deteriorated to the point where she

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can no longer effectively represent Plaintiff, including because of his motion and some disagreements

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regarding his case. (Id. at 2.) She further believes a conflict of interest exists in light of several

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disputed allegations Plaintiff made in his motion seeking that she be discharged as counsel of record.

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(Id.) Nevertheless, in counsel’s opinion, Plaintiff will be ineffective in advocating his own interests at

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trial, and she argues the Court should consider appointing him another pro bono panel attorney. (Id. at

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2-3.) She further explains that in discussing this matter with Plaintiff, he expressed an unwillingness to

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be appointed new counsel, preferring to represent himself. (Id.)

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The decision to grant withdrawal is within the discretion of the Court and leave “may be

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granted subject to such appropriate conditions as the Court deems fit.” Courts consider several factors

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in ruling on a motion to withdraw, including “1) the reasons why withdrawal is sought; 2) the

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prejudice withdrawal may cause to other litigants; 3) the harm withdrawal might cause to the

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administration of justice; and 4) the degree to which withdrawal will delay the resolution of the case.”

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CE Res., Inc. v. Magellan Grp., LLC, No. 2:08-CV-02999MCEKJM, 2009 WL 3367489, at *2 (E.D.

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Cal. Oct. 14, 2009). In addition, this matter also concerns issues regarding whether the Court should

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seek new pro bono counsel to represent Plaintiff should it grant counsel’s motion to withdraw.

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To better evaluate counsel’s motion in this case, the Court requires more information from

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Plaintiff. Specifically, Plaintiff needs to inform the court (1) whether or not he believes he can

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effectively advocate for his own interests in this case; (2) if so, the specific reasons and basis for his

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ability to effectively advocate for his own interests, including for all pre-trial preparations, hearings,

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motions, and at trial; and (3) whether or not he is open to the Court attempting to locate new counsel

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to assist him, and the reasons why or why not. To mitigate any potential prejudice to Plaintiff from the

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need to explain these issues on the record, he shall serve his response to counsel’s motion in a

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declaration submitted under seal to the Court and served on his counsel. Plaintiff shall not serve the

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declaration on the Defendants or their counsel. Plaintiff shall be granted fourteen (14) days to respond

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to counsel’s motion with the information requested by the Court and any other information he believes
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may be of assistance in evaluating counsel’s motion.

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Accordingly, it is HEREBY ORDERED that:

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1.

Within fourteen (14) days of service of this order, Plaintiff is ORDERED to file a

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declaration under seal stating: (a) whether or not he believes he can effectively

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advocate for his own interests in this case; (b) if so, the specific reasons and basis for

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his ability to effectively advocate for his own interests, including for all pre-trial

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preparations, hearings, motions, and at trial; and (c) whether or not he is open to the

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Court attempting to locate new counsel to assist him, and the reasons why or why not;

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2.

Plaintiff shall prominently put in the title of his declaration that it is “Submitted Under

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Seal,” shall provide a copy of this order authorizing sealing with his declaration, and

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shall state in a prominent matter “Sealed Documents” on the envelope transmitting his

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declaration, in accordance with Local Rule 141;

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3.

Plaintiff shall serve his declaration on his counsel Angelina Z. Bradley, but shall not
serve or disclose it to Defendants, their counsel, or the general public;

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4.

Plaintiff’s declaration shall remain under seal until it is ordered unsealed by the Court;

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5.

Plaintiff is cautioned that he is still represented by counsel and his correspondence with

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the Court must be through counsel. The Court has ordered his filing of a declaration as

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an exceptional circumstance, but any further direct correspondence or filings by him

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will be stricken; and

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6.

The Clerk’s Office is DIRECTED to mail Plaintiff a copy of this order at the following
address:

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Troas V. Barnett, E-29521
Calipatria State Prison
B1-107L
P.O. Box 5005
Calipatria, CA 92233

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IT IS SO ORDERED.
Dated:

/s/ Barbara

September 18, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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