Claiborne v. Blauser et al

Filing 44

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/5/12 denying 41 Motion to disqualify the Attorney General. (Dillon, 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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DENNIS G. CLAIBORNE,
Plaintiff,

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vs.

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No. CIV S-10-2427 LKK EFB P

BLAUSER, et al.,

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Defendants.
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ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This order concerns plaintiff’s request to “remove” the Office of the Attorney

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General (“AG”) as counsel for defendants. Dckt. No. 41. As explained below, plaintiff’s motion

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must be denied.

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Plaintiff requests that the AG be disqualified from representing defendants in this matter,

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citing a conflict of interest and an equal protection violation. Plaintiff claims that the AG’s

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representation of defendants creates a conflict of interest because the AG took no action on

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plaintiff’s request that it prosecute the defendants for their alleged use of excessive force, and

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because plaintiff engaged in an attorney-client communication with the AG when someone from

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the “public inquiry unit” of the AG responded to plaintiff’s request for prosecution by directing

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him to contact the Office of the Inspector General. Plaintiff also claims the AG’s “selective

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prosecution” violates the Equal Protection Clause of the Fourteenth Amendment.
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Generally, only current or former clients have standing to seek disqualification based on

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an attorney’s alleged conflict of interest. Kasza v. Browner, 133 F.3d 1159, 1171 (9th Cir.

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1998). However, a non-client may have standing to seek disqualification if he demonstrates an

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injury that is concrete and particularized, and actual or imminent – not conjectural or

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hypothetical. Colyer v. Smith, 50 F. Supp. 2d 966, 971 (C.D. Cal. 1999).

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Here, plaintiff is not a current or former client of the AG, and his alleged communication

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with the AG did not create an attorney-client relationship. See United States v. Landof, 591 F.2d

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36, 38 (9th Cir. 1978) (explaining that the attorney client privilege applies, “(1) where legal

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advice of any kind is sought (2) from a professional legal advisor in his capacity as such, (3) the

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communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his

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instance permanently protected (7) from disclosure by himself or by the legal advisor, (8) except

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the protection be waived.”). Plaintiff claims generally that he informed the AG about his claims

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that defendants assaulted him, but does not explain how this communication results in a conflict

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of interest or a concrete injury. Nor does plaintiff’s claimed equal protection violation,

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apparently based on the AG’s decision to not prosecute defendants, but instead represent them,

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create grounds for disqualification. See California Air Resources Bd. v. Hart, 21 Cal. App. 4th

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289, 295 (1993) (“[I]in the absence of any legislative restriction, [the Attorney General] has the

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power to file any civil action or proceeding directly involving the rights and interests of the state,

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or which he deems necessary for the enforcement of the laws of the state, the preservation of

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order, and the protection of public rights and interest. [Citation] Conversely, he has the duty to

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defend all cases in which the state or one of its officers is a party.”) (citing Cal. Gov’t. Code,

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§ 12512)).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s February 2, 2012 request to

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disqualify the Attorney General, Dckt. No. 41, is denied.

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Dated: March 5, 2012.

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