Baker v. Macomber et al

Filing 113

ORDER signed by Magistrate Judge Allison Claire on 1/31/2019 GRANTING 110 and 111 Motions to Withdraw as Attorney, effective immediately, Mr. Bonillas appointment is limited to cooperation in the preparation of the Joint Pretrial Statement and w ill terminate upon filing of the Pretrial Statement; EXTENDING the deadline for the parties' Joint Pretrial Statement to 3/1/2019; VACATING the Final Pretrial Conference previously schedule for 3/21/2019, all matters to be decided on the papers; and CONFIRMING the trial in this action remains scheduled to commence on 5/20/2019 at 9:00 a.m. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY RAY BAKER,

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Plaintiff,

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v.

No. 2:15-cv-0248 TLN AC P

ORDER

J. MACOMBER, et al.,
Defendants.

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Plaintiff Timothy Ray Baker is a state prisoner currently incarcerated at Salinas Valley

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State Prison (SVSP) under the authority of the California Department of Corrections and

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Rehabilitation (CDCR). In this civil rights action, filed pursuant to 42 U.S.C. § 1983, plaintiff

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claims the use of excessive force and deliberate indifference to plaintiff’s serious medical needs

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by defendant J. McCowan, a correctional officer. Pending are the separate requests of plaintiff

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and his appointed counsel, David Bonilla, to relieve counsel from his representation of plaintiff

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due to irreconcilable differences, and to appoint new counsel. See ECF Nos. 110, 111. For the

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reasons that follow, current counsel is relieved from his representation of plaintiff; however,

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plaintiff must now proceed pro se.

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The undersigned has reviewed the requests of plaintiff and his counsel, and the declaration

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filed by Mr. Bonilla, under the standards set forth in Local Rule 182(d) and Rule 3-700(A)(2),

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California Rules of Professional Conduct. The court finds good cause to relieve Mr. Bonilla from

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his representation of plaintiff and finds that his withdrawal will not unduly prejudice plaintiff.

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For these reasons, Mr. Bonilla will be relieved of his appointment as plaintiff’s legal

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representative.

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Appointment of another attorney for plaintiff is more problematic. Although plaintiff

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previously demonstrated circumstances warranting the appointment of counsel, see ECF No. 99,

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the number of attorneys willing to volunteer their services in this court is very limited. Moreover,

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while some of plaintiff’s frustrations with current counsel appear partly warranted, Mr. Bonilla

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was not the first attorney appointed to represent plaintiff. In April 2018, the court appointed

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attorney Rebecca Weinstein-Hamilton for the limited purpose of representing plaintiff at the June

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2018 settlement conference in this case. Due to the significant number of prisoner cases pending

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in this court, in contrast to the limited number of available attorneys, equity and fairness require

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that plaintiff now proceed in this action pro se. Moreover, because this case has been pending in

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this court for more than four years, to the disadvantage of both parties, the interests of justice

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require that this action continue to proceed. The court finds that the present circumstances of the

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case do not require further appointment of counsel after the Joint Pretrial Statement is filed.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The parties’ requests that Mr. Bonilla be permitted to withdraw his legal representation

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of plaintiff, ECF Nos. 110, 111, are GRANTED.

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2. Effective immediately, Mr. Bonilla’s appointment is limited to cooperation in the

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preparation of the Joint Pretrial Statement, as specified below. The appointment will terminate

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upon filing of the Pretrial Statement, and plaintiff shall thereafter represent himself in propria

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persona.

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3. The deadline for the parties’ Joint Pretrial Statement is extended to March 1, 2019.

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Defendant’s counsel shall prepare, file and serve the joint statement in consultation with plaintiff

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and Mr. Bonilla, who shall assist defendant’s counsel as needed.

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4. The Final Pretrial Conference scheduled before District Judge Nunley on March 21,

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2019, is VACATED; all matters will be decided on the papers.

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5. The trial in this action remains scheduled to commence before District Judge Nunley,

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in Courtroom No. 2, on Monday, May 20, 2019, at 9:00 a.m. The parties estimate a three-day

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trial. By separate order, the court will issue a writ ad testificandum to obtain plaintiff’s presence

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at trial.

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IT IS SO ORDERED.
DATED: January 31, 2019

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