Kilgore v. Mandeville et al

Filing 123

ORDER signed by Magistrate Judge Kendall J. Newman on 9/18/2012 ORDERING that plaintiff's request to seal the motion and exhibits he submitted to the court on 9/13/2012 is GRANTED, the clerk is to file these documents UNDER SEAL; the dispositiv e motion deadline of 9/29/2012 is VACATED until further notice of the court; plaintiff's request that the court direct prison staff to photocopy additional exhibits is DENIED; and plaintiff's counsel shall file UNDER SEAL, within 21 days, a statement addressing the matters set forth in this order.(Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IVAN KILGORE,

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Plaintiff,
vs.
RICHARD MANDEVILLE, et al.,
Defendants.

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No. 2:07-cv-2485 GEB KJN P

ORDER
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On September 13, 2012, plaintiff, acting without his counsel, filed a motion “to

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substitute” his appointed counsel, and requested that his motion and exhibits, which contain

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confidential attorney-client correspondence, be filed under seal. Because of the confidential

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nature of this material, plaintiff’s request to seal will be granted. Plaintiff’s further request that

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the court direct prison staff to photocopy additional exhibits for the court’s review is denied.

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Due to the pendency of the instant matters, the court vacates the dispositive

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motion deadline in this action, September 29, 2012, until further notice. No dispositive motions

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should be filed at this time.

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In his instant communication with the court, plaintiff asserts a perceived lack of
confidence in the pro bono legal services provided by plaintiff’s appointed counsel, Mr. Edward

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Misleh. This is the second such communication by plaintiff. (See Dkt. Nos. 120, 121.) Plaintiff

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appears to request appointment of alternative pro bono counsel, although plaintiff previously

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requested, in the alternative, “reinstatement of my pro se status . . . .” (Dkt. No. 120 at 1.)

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In order for the court to assess this matter, Mr. Misleh is directed to file, under

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seal, within 21 days after the filing date of this order, a statement that summarizes counsel’s

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relevant communications with plaintiff (without disclosing the substance of any attorney-client

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communications), and any concerns that counsel may have in his continued representation of

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plaintiff. Counsel’s statement should address the considerations set forth in Rule 3-700, State

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Bar of California, Rules of Professional Conduct, including whether there has been a breakdown

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in communications between counsel and plaintiff. Counsel’s statement should identify the legal

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services he has provided in this action to date. Counsel shall also inform the court whether he

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believes it would be beneficial for the undersigned to conduct a confidential telephonic hearing

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regarding status of counsel with counsel and plaintiff.

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The court will issue an appropriate ruling after review of the statement filed by
plaintiff’s counsel and, if appropriate, a telephonic hearing.

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Accordingly, for the foregoing reasons, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request to seal the motion and exhibits he submitted to the court on

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September 13, 2012, is granted. The Clerk of Court is directed to file these documents under

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seal.

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2. The dispositive motion deadline in this action, September 29, 2012 (see Dkt.
No. 115), is vacated until further notice of the court.

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3. Plaintiff’s request that the court direct prison staff to photocopy additional

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exhibits is denied.

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4. Plaintiff’s counsel shall file under seal, within 21 days after the filing date of

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this order, a statement addressing the matters set forth above.

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DATED: September 18, 2012

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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