Alexander, et al v. CA Dept. of Corrections and Rehabilitation, et al

Filing 37

ORDER signed by Judge Morrison C. England, Jr. on 04/20/12 ORDERING that Thornton L. Davidson's 27 Motion to Withdraw as Attorney is GRANTED and he is RELIEVED as counsel of record for Plaintiffs effective upon the filing of proof of service of this signed order on Plaintiffs at their last known addresses: 1114 Orange #2, Redding, CA 96001. (Benson, A.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JONATHAN NICHOLAS ALEXANDER,
personal representative for
ESTATE OF JONATHAN ALEXANDER,
et al.,

No. 2:11-cv-00640-MCE-CKD

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Plaintiffs,
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v.

MEMORANDUM AND ORDER

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STATE OF CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILITATION, a State of
California agency, et al.,

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Defendants.

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Per his Motion (ECF No. 27), Thornton L. Davidson

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(“Counsel”) seeks leave of this Court to withdraw as Plaintiffs’

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attorney.

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GRANTED.1

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For the following reasons, Counsel’s Motion is

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Because oral argument will not be of material assistance,
the Court orders this matter submitted on the briefing. E.D.
Cal. Local Rule 230(g).
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BACKGROUND

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In June of 2010, Decedent Jonathan Alexander (“Decedent”)

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was murdered by a fellow inmate while incarcerated at the Deuel

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Vocational Institution in Tracy, California.

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children, Jonathan Nicholas Alexander, individually and as

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personal representative for the Estate of Jonathan Alexander, and

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Amber Dawn Alexander, by and through her Guardian Ad Litem

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Jonathan Nicholas Alexander (“Plaintiffs”), subsequently

Decedent’s

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initiated this action against, among others, the California

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Department of Corrections and Rehabilitation (“CDCR”) and the

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Secretary of the CDCR (collectively “Defendants”).

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According to Counsel, he became involved in the case some

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time prior to August of 2010 when the attorney representing the

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inmate that had killed Decedent advised him Plaintiffs needed

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representation to preserve their statutory rights.

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Decl., ¶ 3.

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with the California Victim Compensation and Government Claims

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Board and then the Complaint here.

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Counsel’s

Plaintiffs retained Counsel, who filed first a claim

Id., ¶¶ 4-6.

Subsequently, on December 15, 2011, Counsel filed a Motion

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to Withdraw as Attorney (ECF No. 17), which this Court later

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denied.

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Supplemental Declaration providing additional support for his

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request.

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Counsel has now renewed his Motion and filed a

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In his current Motion, as in his first, Counsel contends

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that this case “goes beyond a wrongful death or in-custody death”

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and that it instead “addresses various problems that are

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ingrained in the state’s prison system, their effect on the in-

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custody care of Plaintiffs’ father and his assailant, as well as

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how that care may have contributed to Plaintiffs’ father’s

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death.”

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Counsel thus believes his firm lacks the time and resources to

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litigate this matter.

Motion, 2:24-27.

Given the complexity of these issues,

Counsel’s Decl., ¶ 7.

By way of his

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Supplemental Declaration, Counsel has also now clarified that he

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suffers from a medical condition rendering his representation of

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Plaintiffs in this case detrimental to both him and to his

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clients.

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avoid the commencement of proceedings Counsel feels he is not

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qualified to pursue, Counsel has not yet effected service of the

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Complaint.

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Counsel’s Supplemental Decl., ¶¶ 3-9.

As such, to

Counsel’s Decl., ¶ 8.

In the meantime, Counsel has contacted other attorneys in an

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attempt to locate substitute representation for his clients.

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Id., ¶ 9.

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substitute counsel had been retained, and Counsel thus seeks to

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leave his clients in propria persona.

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Motion was filed, but Counsel advised the Court that Plaintiffs

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believe he has a duty to litigate their claims.

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As of the filing of his instant Motion, however, no

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Id.

No opposition to this

Id., ¶ 10.

ANALYSIS

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In this district, “an attorney who has appeared may not

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withdraw leaving the client in propria persona without leave of

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court upon noticed motion and notice to the client and all other

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parties who have appeared.”

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addition, “[w]ithdrawal as attorney is governed by the Rules of

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Professional Conduct of the State Bar of California.”

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The California Rules of Professional Conduct permit a member of

E.D. Cal. Local Rule 182(d).

In

Id.

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the State Bar to seek to withdraw when either “[t]he member’s

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mental or physical condition renders it difficult for the member

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to carry out the employment effectively,” or “[t]he member

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believes in good faith...that the tribunal will find the

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existence of...good cause for withdrawal.”

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Professional Conduct, Rule 3-700(C)(4),(6).

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shall not withdraw from employment until the member has taken

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reasonable steps to avoid reasonably foreseeable prejudice to the

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rights of the client, including giving due notice to the client,

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allowing time for employment of other...and complying with

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applicable laws and rules.”

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grant leave to withdraw is subject to the sound discretion of the

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Court and “may be granted subject to such appropriate conditions

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as the Court deems fit.”

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Canandaigua Wine Co., Inc. v. Edwin Moldauer, 2009 WL 89141, *1

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(E.D. Cal.).

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Cal. Rule
However, “[a] member

Id., Rule 3-700(A)(2).

Whether to

E.D. Cal. Local Rule 182(d);

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Having considered all papers submitted to the Court,

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including both of Counsel’s declarations, the Court now finds his

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Motion to be supported by good cause.

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Professional Conduct, Rule 3-700(C)(4), (6); Canandaigua Wine

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Co., 2009 WL 89141, *2; Segal v. State Bar, 44 Cal. 3d 1077, 1084

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(“If an attorney lacks the time and resources to pursue a

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client’s case with reasonable diligence, he or she is obliged to

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decline representation.”).

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Plaintiffs by being left to litigate this action in propria

See, e.g., Cal. Rule

In addition, any prejudice to

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persona is outweighed by the prejudice that would befall them if

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they continue to be represented by an attorney who admittedly

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lacks the appropriate financial and personal resources to

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properly prosecute their case.

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notice for months now that Counsel intended to withdraw, and

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Plaintiffs have thus had ample opportunity to locate substitute

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counsel.

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proper, unopposed and supported by good cause, the Motion to

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Withdraw is now GRANTED.

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Moreover, Plaintiffs have been on

Accordingly, because Counsel’s request is procedurally

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CONCLUSION

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For the reasons just stated, Counsel’s Motion to Withdraw

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(ECF No. 27) is GRANTED.

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counsel of record for Plaintiffs effective upon the filing of

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proof of service of this signed order on Plaintiffs at their last

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known addresses:

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Thornton L. Davidson is relieved as

1114 Orange #2
Redding, CA 96001

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IT IS SO ORDERED.
Dated: April 20, 2012

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_____________________________
MORRISON C. ENGLAND, JR.
UNITED STATES DISTRICT JUDGE

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