Williams v. Baker et al

Filing 145

ORDER DENYING 141 Motion for Substitute Counsel or to Proceed Pro Se, signed by Magistrate Judge Helena M. Barch-Kuchta on 11/03/2023. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHANNON WILLIAMS,

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Plaintiff,

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v.

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CHRISTOPHER BAKER and UNITED
STATES,

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Case No. 1:16-cv-01540-ADA-HBK (PC)
ORDER DENYING MOTION FOR
SUBSTITUTE COUNSEL OR TO PROCEED
PRO SE1
(Doc. No. 141)

Defendants.

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Pending before the Court is Plaintiff’s “Motion for Substitute Counsel or to Proceed Pro

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Se.” (Doc. No. 141, “Motion”). Plaintiff’s Counsel did not file a response. For the reasons set

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forth below, the undersigned denies Plaintiff’s Motion.
BACKGROUND AND SUMMARY OF MOTION

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Plaintiff initiated this action by filing a pro se prisoner civil rights action pursuant to 42

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U.S.C. § 1983. (Doc. No. 1). On October 28, 2019, Plaintiff filed a Motion for Appointment of

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Counsel, in part because the Court directed him to file a brief on the applicability to this case of

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Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017), and Plaintiff was unable to access certain relevant

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legal documents due to his detention in the security housing unit (“SHU”). (Doc. No. 66). On

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February 7, 2020, the previously assigned magistrate judge found appointment of counsel to be

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This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302
(E.D. Cal. 2022).

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warranted for the limited purpose of addressing whether Plaintiff’s remaining Eighth Amendment

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allegations stated a claim upon which relief may be granted in light of Ziglar. (See Doc. No. 69).

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On March 4, 2020, the magistrate judge appointed Carter White and the UC Davis King Hall

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Civil Rights Clinic as Plaintiff’s counsel for the limited purpose of briefing on the proper

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application of Ziglar to this case. (Doc. No. 70 at 1-2 ¶ 1). The representation was ordered to

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conclude upon the Court issuing an order whether Plaintiff’s complaint stated a claim in light of

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Ziglar. (Id. at 2 ¶ 2). Upon issuing such an order, the previous magistrate directed Plaintiff’s

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counsel to file a notice indicating whether they wished to continue the representation. (Doc. No.

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82 at 16). Counsel subsequently filed a Notice indicating they intended to continue the

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representation. (Doc. No. 83).
On July 19, 2023, Plaintiff filed the instant Motion. (Doc. No. 141). In it, he asserts that

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his Counsel has failed to investigate important issues in his case, file motions requested by

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Plaintiff, depose certain witnesses, and respond to more than 20 of Plaintiff’s emails. (See

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generally id.). These failures have caused a break down and loss of trust in the attorney-client

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relationship. (Id. at 11). Plaintiff’s counsel did not file any response.

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APPLICABLE LAW AND ANALYSIS

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Withdrawal of counsel is governed by the Rules of Professional Conduct of the State Bar

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of California, and the Local Rules of Practice for the United States District Court, Eastern District

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of California. See L.R. 182; L.S. ex rel. R.S. v. Panama Buena Vista Union Sch. Dist., 2012 WL

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3236743, at *1 (E.D. Cal. Aug. 6, 2012).

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The California Rules of Professional Conduct provide that if the rules of a court require

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permission for an attorney to withdraw, the attorney may not withdraw from employment in a

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proceeding without the permission of such court. Cal. R. Prof. Conduct 1.16(c). In addition,

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counsel must take reasonable steps to avoid prejudicing the rights of the client, including

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providing notice, allowing time for the client to employ other counsel, and complying with

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applicable laws and rules. Cal. R. Prof. Conduct 1.6(d). Mandatory withdrawal is required where

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the lawyer knows or reasonably should know that the client “is bringing an action, conducting a

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defense, asserting a position in litigation, or taking an appeal, without probable cause and for the
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purpose of harassing or maliciously injuring any person;” “the representation will result in

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violation of these rules or of the State Bar Act;” “the lawyer’s mental or physical condition

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renders it unreasonably difficult to carry out the representation effectively; or the client

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discharges the lawyer.” Cal. R. Prof. Conduct 1.6(a). Grounds for permissive withdrawal exist

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when “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the

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representation effectively.” Cal. R. Prof. Conduct 1.6(b)(4).

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The Local Rules provide that an attorney who has appeared on behalf of a client may not

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withdraw, leaving the client in propria persona, without leave of court upon noticed motion, along

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with notice to the client and all other parties who have appeared. L.R. 182(d). The attorney is

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also required to “provide an affidavit stating the current or last known address or addresses of the

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client and the efforts made to notify the client of the motion to withdraw.” Id. Likewise,

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California’s Rules of Court require notice of a motion to withdrawal to be served on the client and

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other parties who have appeared in the action. Cal. R. Court 3.1362(d).
Here, the Court has not received a Motion to Withdraw from Plaintiff’s counsel. Without

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such motion, filed in compliance with the applicable Local Rules and Rules of Court, the Court

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may not permit the withdrawal of Plaintiff’s counsel. Thus, to the extent Plaintiff wishes to

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discharge his Counsel and proceed pro se, he must direct his Counsel to file an appropriate

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motion. The Court will then evaluate the motion after considering the applicable factors,

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including (1) the reasons for withdrawal, (2) prejudice that may be caused to other litigants, (3)

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harm caused to the administration of justice, and (4) delay to the resolution of the case caused by

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withdrawal.” L.S. ex rel. R.S., 2012 WL 3236743, at *2 (citing Canandaigua Wine Co., Inc. v.

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Moldauer, 2009 U.S. Dist. LEXIS 4238, at *4 (E.D. Cal. Jan. 13, 2009)); accord Kassab v. San

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Diego Police Dep’t, 2008 WL 251935, at *1 (S.D. Cal. Jan. 29, 2008). Additionally, “[l]eave to

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withdraw may be granted subject to such appropriate conditions as the Court deems fit.” L.R.

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182(d).

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To the extent Plaintiff’s Motion seeks appointment of new Counsel, the Motion is denied

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as premature and because Plaintiff has not made a showing of exceptional circumstances. A

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litigant does not have a constitutional right to appointed counsel in 42 U.S.C. § 1983 civil rights
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actions. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981). Pursuant to 28 U.S.C. §

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1915(e)(1), “[t]he court may request an attorney to represent any person unable to afford

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counsel.” The previous magistrate judge assigned counsel finding the exceptional circumstances

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presented by Plaintiff’s detention in the SHU and the new U.S. Supreme Court case law affecting

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Plaintiff’s case. (See Doc. No. 69); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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Preliminarily, the Court does not find that Plaintiff’s disagreements with Counsel constitute

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exceptional circumstances to warrant appointment of new counsel.

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If Plaintiff elects nevertheless to discharge his counsel and seek new counsel, the Court
cautions Plaintiff that further appointment of counsel is not guaranteed, and indeed highly

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unlikely at this stage of the proceedings absent a new demonstration of exceptional

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circumstances. See Palmer, 560 F.3d at 970. If Plaintiff elects to discharge his Counsel, he may

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well be required to continue prosecuting this case without assistance of counsel.

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Accordingly, it is ORDERED:

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Plaintiff’s Motion for Substitute Counsel or to Proceed Pro Se (Doc. No. 141) is

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DENIED.

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Dated:

November 3, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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