Grant v. Swartzinager et al

Filing 74

ORDER signed by Magistrate Judge John F. Moulds on 09/04/12 ordering the hearing set for 09/06/12 is dropped from the calendar. Plaintiff's 07/09/12 motion to substitute Frederick Hoffman in as plaintiff in this action 71 is granted. Hencefo rth this action shall be denominated Frederick Hoffman v. Governor Arnold Schwarzenegger, et al., No. 2:07-cv-2700 KJM JFM P. Plaintiff's 07/09/12 motion for appointment of counsel 71 is granted. Joe Ramsey, Esq is appointed to represent plaintiff Frederick Hoffman in this action. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY D. GRANT,

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Plaintiff,

No. 2:07-cv-2700 KJM JFM (PC)

vs.
GOVERNOR ARNOLD
SCHWARZENEGGER, et al.,

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Defendants.
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ORDER
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This is a civil rights action pursuant to 42 U.S.C. § 1983 brought by plaintiff who

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is now deceased. Prior to plaintiff’s death, the court appointed counsel to represent plaintiff. On

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July 9, 2012, plaintiff’s counsel filed a motion for an order substituting Frederick Hoffman in

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place of plaintiff and for order appointing counsel to represent Mr. Hoffman. The motion is set

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for hearing before the undersigned on September 6, 2012. On August 22, 2012, defendants filed

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a response to the motion. After review of the motion and the response thereto, the motion will be

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resolved by this order without oral argument. See Local Rule 230(g) (E.D.Cal.).

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There is no dispute that Mr. Hoffman is plaintiff’s successor-in-interest, and

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defendants state in their response that it appears “likely” that Mr. Hoffman is “a proper party to

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substitute into the action.” Defendants’ Response, at 3. Defendants question whether he can

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recover damages in this action and on that basis “question the continued viability of the case, and
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the need to substitute Mr. Hoffman as a party in this action.” Id. Defendants rely on an opinion

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from a judge in this court applying California law and holding that a plaintiff in a survival action

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cannot seek damages for pain and suffering. Id. It is not clear from the record that the damages

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sought by plaintiff are limited to pain and suffering. For that reason, the court will not reach at

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this time the legal question tendered by defendants. Plaintiff’s motion for substitution will be

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granted.1

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Defendants do not oppose appointment of counsel for plaintiff in the event the
motion to substitute is granted.

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In accordance with the above, and good cause appearing, IT IS HEREBY
ORDERED that:

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1. The hearing set for September 6, 2012 is dropped from calendar;

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2. Plaintiff’s July 9, 2012 motion to substitute Frederick Hoffman in as plaintiff

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in this action is granted;

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3. Henceforth this action shall be denominated Frederick Hoffman v. Governor
Arnold Schwarzenegger, et al., No. 2:07-cv-2700 KJM JFM P;

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4. Plaintiff’s July 9, 2012 motion for appointment of counsel is granted; and

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5. Joe Ramsey, Esq. is appointed to represent plaintiff Frederick Hoffman in this

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action.

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DATED: September 4, 2012.

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hoff2700.o

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Nothing in this order precludes defendants from raising the argument at a later stage of
these proceedings.
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