Bruce, et al v. E. Ylst, et al

Filing 306

ORDER GRANTING PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL DURING SETTLEMENT PROCEEDINGS; REFERRING PLAINTIFF TO FEDERAL PRO BONO PROJECT AND STAYING PROCEEDINGS PENDING APPOINTMENT OF COUNSEL by Judge Yvonne Gonzalez Rogers denying 278 Motion for Reconsideration ; granting 290 Motion to Appoint Counsel ; denying 291 Motion to Expedite. (Attachments: # 1 Certificate/Proof of Service)(fs, COURT STAFF) (Filed on 12/20/2016)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 VINCENT C. BRUCE, Plaintiff, 5 v. 6 7 E. YLST, et al., Defendants. 8 Case No. 99-cv-04492-YGR (PR) ORDER GRANTING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL DURING SETTLEMENT PROCEEDINGS; REFERRING PLAINTIFF TO FEDERAL PRO BONO PROJECT; AND STAYING PROCEEDINGS PENDING APPOINTMENT OF COUNSEL 9 10 I. BACKGROUND The above-referenced case was reassigned to the undersigned judge on November 3, 2016. 11 United States District Court Northern District of California According to the record in this case, Plaintiff initially filed a pro se civil rights action 12 pursuant to 42 U.S.C. § 1983 in 1999, and this action was first assigned to the Honorable Vaughn 13 R. Walker. Plaintiff was challenging his gang validation, and on September 13, 2001, Judge 14 Walker granted Defendants’ motion for summary judgment. On December 10, 2003, the Ninth 15 Circuit affirmed in part, reversed in part, and remanded this action to the district court. Bruce v. 16 Ylst, 351 F.3d 1283 (9th Cir. 2003). Upon remand, Judge Walker appointed pro bono counsel, 17 and the parties ultimately entered into a settlement agreement on December 13, 2006. The parties 18 then entered into a stipulated dismissal. See Dkt. 226. 19 On March 15, 2013, Plaintiff filed a motion to enforce the settlement agreement. The case 20 was thereafter re-assigned to the Honorable Ronald M. Whyte. 21 Judge Whyte re-opened the case, and ordered Defendants to file a response to Plaintiff’s 22 motion. Defendants filed their response, and Plaintiff filed a reply. The court denied the motion 23 to enforce without prejudice in order to determine first whether the settlement agreement had been 24 breached. The court then ordered Defendants to show cause why Plaintiff was not entitled to 25 relief. Thereafter, Defendants filed their response, and Plaintiff filed his reply. On September 30, 26 2016, upon reviewing the pleadings and record in this case, Judge Whyte denied in part Plaintiff’s 27 motion to enforce the settlement agreement, and referred this matter to the Honorable Nandor J. 28 1 Vadas for settlement proceedings. Dkt. 272. As mentioned above, this case was then reassigned 2 to the undersigned judge. Dkt. 275. At this time, the parties are scheduled to appear before Magistrate Judge Vadas for a 3 4 Telephonic Status Conference set for January 3, 2017 at 1:00 PM and for settlement proceedings 5 through video-conferencing on January 9, 2017 at 2:00 PM. Before the Court are Plaintiff’s various motions: (1) his “Motion to Appoint Counsel to 6 Facilitate a Timely Settlement of the Claims”; (2) his motion for reconsideration of Judge Whyte’s 8 “Order Denying in Part Motion To Enforce Settlement Agreement; Referring Case to Pro Se 9 Prisoner Settlement Program”; and (3) his “Motion for an Expedited Order to Show Cause Why 10 Relief Should Not Be Granted on Plaintiff's Claims [that] the 2013 Revalidation of the Plaintiff 11 United States District Court Northern District of California 7 Violated the Bruce v. Ylst Settlement Agreement.” Dkts. 278, 290, 291. The Court notes that 12 Plaintiff has consented to magistrate judge jurisdiction in this matter.1 Dkt. 279. 13 14 II. DISCUSSION “Generally, a person has no right to counsel in civil actions. . . . However, a court may 15 under ‘exceptional circumstances’ appoint counsel for indigent civil litigants pursuant to 28 16 U.S.C. § 1915(e)(1).” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted). To 17 determine “exceptional circumstances” are present, “a court must consider ‘the likelihood of 18 success on the merits as well as the ability of the petitioner to articulate his claims pro se in light 19 of the complexity of the legal issues involved.’” Id. In determining whether exceptional 20 circumstances exist, “[a] district court must determine whether a) there is a likelihood of success 21 on the merits; and b) the prisoner is unable to articulate his claims in light of the complexity of the 22 legal issues involved.” Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014). Based on the record 23 presented, the Court finds appropriate the appointment of counsel for the limited purpose of 24 representing Plaintiff during settlement proceedings. Therefore, the Court exercises its discretion 25 to GRANT Plaintiff’s request for appointment of counsel to represent him during settlement 26 proceedings. Dkt. 290. 27 1 28 To date, Defendants have not indicated whether they have consented to magistrate judge jurisdiction. 2 1 III. CONCLUSION For the foregoing reasons, the Court orders as follows: 2 1. The Court GRANTS Plaintiff’s request for appointment of counsel to represent him 3 during settlement proceedings. Dkt. 290. 4 2. The Court notes that the settlement proceedings before Magistrate Judge Vadas will 5 be vacated and will be rescheduled until after counsel has been appointed in this matter. 6 3. Having determined that it would be beneficial to have counsel assist Plaintiff 7 during settlement proceedings in this matter, and good and just cause appearing, the Court hereby 8 REFERS the action to the Federal Pro Bono Project (“Project”) to secure pro bono counsel to 9 represent Plaintiff in this action, in the manner set forth below: 10 a. The Clerk of the Court shall forward the Referral Order to the appropriate 11 United States District Court Northern District of California Project office, San Francisco or San Jose, determined by whether the referring judge is located in 12 the San Francisco/Oakland or San Jose division. The scope of this referral shall be for: 13 14 all purposes for the duration of the case X the limited purpose of representing the litigant in the course of 15 mediation 16 early neutral evaluation X 17 settlement conference briefing and hearing on the following motion (e.g., motion for summary judgment or motion to dismiss): _________________________________________________________ 18 19 20 discovery as follows: _________________________________________________________ 21 other: _________________________________________________________ 22 23 24 25 26 27 b. Upon being notified by the Project that an attorney has been located to represent Plaintiff, that attorney shall be appointed as counsel for Plaintiff in this matter for the scope of representation described above. If the appointment of counsel is for limited purposes, the Court shall issue an order relieving the volunteer attorney from the limited representation of the litigant once those purposes have been fulfilled. c. The instant action is temporarily STAYED and administratively closed until 28 3 1 the Court is informed by the Project that counsel has been secured and appointed by the Court. 2 Upon the appointment of counsel, the action will be reopened, the case will continue to be stayed 3 until four (4) weeks from the date an attorney is appointed to represent Plaintiff, a Case 4 Management Conference will be scheduled, and settlement proceedings before Magistrate Judge 5 Vadas will be rescheduled. 6 7 4. Plaintiff’s remaining motions are DENIED without prejudice to refiling after counsel has been appointed for Plaintiff. Dkts. 278, 291. 8 5. 9 IT IS SO ORDERED. 10 United States District Court Northern District of California 11 12 This Order terminates Docket No. 278, 290, and 291. Dated: December 20, 2016 ______________________________________ YVONNE GONZALEZ ROGERS United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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