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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 GREGORY D. GRANT, 11 12 13 Plaintiff, No. 2:07-cv-2700 KJM JFM (PC) vs. GOVERNOR ARNOLD SCHWARZENEGGER, et al., 14 Defendants. 15 ORDER / 16 This is a civil rights action pursuant to 42 U.S.C. § 1983 brought by plaintiff who 17 is now deceased. Prior to plaintiff’s death, the court appointed counsel to represent plaintiff. On 18 July 9, 2012, plaintiff’s counsel filed a motion for an order substituting Frederick Hoffman in 19 place of plaintiff and for order appointing counsel to represent Mr. Hoffman. The motion is set 20 for hearing before the undersigned on September 6, 2012. On August 22, 2012, defendants filed 21 a response to the motion. After review of the motion and the response thereto, the motion will be 22 resolved by this order without oral argument. See Local Rule 230(g) (E.D.Cal.). 23 There is no dispute that Mr. Hoffman is plaintiff’s successor-in-interest, and 24 defendants state in their response that it appears “likely” that Mr. Hoffman is “a proper party to 25 substitute into the action.” Defendants’ Response, at 3. Defendants question whether he can 26 recover damages in this action and on that basis “question the continued viability of the case, and 1 1 the need to substitute Mr. Hoffman as a party in this action.” Id. Defendants rely on an opinion 2 from a judge in this court applying California law and holding that a plaintiff in a survival action 3 cannot seek damages for pain and suffering. Id. It is not clear from the record that the damages 4 sought by plaintiff are limited to pain and suffering. For that reason, the court will not reach at 5 this time the legal question tendered by defendants. Plaintiff’s motion for substitution will be 6 granted.1 7 8 Defendants do not oppose appointment of counsel for plaintiff in the event the motion to substitute is granted. 9 10 In accordance with the above, and good cause appearing, IT IS HEREBY ORDERED that: 11 1. The hearing set for September 6, 2012 is dropped from calendar; 12 2. Plaintiff’s July 9, 2012 motion to substitute Frederick Hoffman in as plaintiff 13 in this action is granted; 14 15 3. Henceforth this action shall be denominated Frederick Hoffman v. Governor Arnold Schwarzenegger, et al., No. 2:07-cv-2700 KJM JFM P; 16 4. Plaintiff’s July 9, 2012 motion for appointment of counsel is granted; and 17 5. Joe Ramsey, Esq. is appointed to represent plaintiff Frederick Hoffman in this 18 action. 19 DATED: September 4, 2012. 20 21 22 23 24 12 hoff2700.o 25 1 26 Nothing in this order precludes defendants from raising the argument at a later stage of these proceedings. 2

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