Meneweather v. Powell et al

Filing 136

ORDER by Judge ARMSTRONG denying 132 Motion to Appoint Counsel (lrc, COURT STAFF) (Filed on 7/24/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TOMAS LOPEZ MENEWEATHER,

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No. C 07-04204 SBA (PR)

Plaintiff,

ORDER DENYING PLAINTIFF’S
MOTION FOR APPOINTMENT OF
SUBSTITUTE COUNSEL

v.
B. POWELL, et al.,
Defendants.
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On September 27, 2012, the Court sua sponte appointed Sheppard, Mullin, Richter &

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United States District Court
For the Northern District of California

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Hampton LLP (“Sheppard Mullin”) to represent Plaintiff in this action on a pro bono basis. Dkt. 72.

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On May 11, 2012, Sheppard Mullin filed a motion to withdraw as counsel of record, pursuant to

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California Rules of Professional Conduct, rules 3-700(B)-(C). Dkt. 116. The Court granted

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Sheppard Mullin’s unopposed motion on May 24, 2012. Dkt. 126.

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On June 6, 2012, the Court held a Case Management Conference, at which time it maintained

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the trial date of September 17, 2012, as well as the previously-entered pretrial schedule. Dkt. 130.

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In addition, the Court referred the action to Magistrate Judge Nandor Vadas for a further settlement

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conference. Dkt. 130. On July 12, 2012, Magistrate Judge Vadas reported that the parties were

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unable to reach a settlement. Dkt. 134.

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Before the Court is Plaintiff’s “Motion for Appointment of Counsel,” which shall be

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construed as a motion for appointment of substitute counsel because his previous counsel has

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withdrawn. Dkt. 132. For the reasons discussed below, the Court DENIES Plaintiff’s motion.

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DISCUSSION
In his present motion for appointment of substitute counsel, Plaintiff states that previous

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attempts at settlement have been unsuccessful; therefore, he believes “that a jury trial is [his] best

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hope.” (Mot. for Appt. of Counsel at 1.) Thus, Plaintiff requests appointment of counsel to “provide

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[him] with a[n] opportunity to obtain representation equally qualified with the proffessional [sic]

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counsel provided by the State for the defendants and performing of other difficult tasks of litigation

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by virtue of experience and of not being locked up . . . .” (Id. at 1-2.) Specifically, Plaintiff states

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that during a hospital visit on June 15, 2012, “[a]ll of [his] confidential legal documents, CDs [and]

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information provided to [him] by counsel appointed by the Court to assist [him] but later

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withdrew was taken by prison guards” at Folsom State Prison. (Id. at 2.) He adds that prison guards

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also took his “18 inch 18 karat gold rope chain with a 1 1/2 18 karat gold scorpion on it and

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refuse[d] to return it.” (Id.) He also states the following reasons in support of his request for

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appointment of counsel: (1) his case “requires extensive documentary discovery and deposition of

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prison guards”; (2) his case “has complex factual issues”; and (3) he has “physical disabilities that

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would make it especially difficult for [him] to present this case without the assistance of counsel.”

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(Id.)

United States District Court
For the Northern District of California

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An indigent inmate bringing a section 1983 action has no right to be represented by an

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attorney. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel

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in § 1983 action), withdrawn in part on other grounds on reh’g en banc, 154 F.3d 952 (9th Cir. 1998)

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(en banc). The decision to request counsel to represent an indigent litigant under § 1915 is within

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“the sound discretion of the trial court and is granted only in exceptional circumstances.” Franklin

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v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). When determining whether “exceptional

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circumstances” exist, a court must consider “the likelihood of success on the merits as well as the

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ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Palmer v. Valdez, 560 F.3d 965, 968 (9th Cir. 2009). Here, Plaintiff has made no

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showing regarding the likelihood of success on the merits. At the same time, Plaintiff has exhibited

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no difficult in articulating his claims in light of the complexity of the legal issues involved.

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Aside from the foregoing, the Court notes that its actual ability to secure counsel for indigent

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inmate is extremely limited. Few attorneys are willing to accept representation in these types of case

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on a pro bono (i.e., no charge to the inmate) basis. In this instance, Plaintiff was fortunate to have a

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firm of Sheppard Mullin’s caliber agree to represent him. The firm is well respected and is staffed

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by well trained attorneys. The Court granted Sheppard Mullin’s motion to withdraw upon having

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considered allegations that the firm “discovered a serious issue during the investigation and

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prosecution of [Plaintiff’s] claims.” (Higgins Decl. ¶ 4.) The firm invested “over 300 hours of

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attorney time on this matter, which includes three client visits, a site inspection, and attendance at a
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settlement conference.” (Id. ¶ 6.) The firm also “spent thousands of dollars obtaining [Plaintiff’s]

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personal and medical records.” (Id.) Given these circumstances, the appointment of substitute

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counsel–assuming that counsel could be located–would unduly delay resolution of this action, which

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was commenced almost five years ago.

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At this time, the Court finds that appointment of substitute counsel in the present case is not

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warranted. As noted above, there are very few attorneys who will to take these types of cases. In

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addition, Plaintiff faces the added disadvantage of already having counsel appointed for him in this

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case. The fact that Plaintiff has already had a reputable firm represent him–and then withdraw–will

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make it highly unlikely that a new attorney would be willing to take on this case. Indeed, it will

United States District Court
For the Northern District of California

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most likely prove to be very difficult to find an attorney willing to represent Plaintiff. In sum, the

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Court finds that exceptional circumstances do not warrant the appointment of substitute counsel;

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therefore, the Court DENIES Plaintiff’s motion.

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Plaintiff will have to proceed to trial without counsel to represent him. As far as the Court is

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aware, Plaintiff is not a trained attorney, and therefore, is unfamiliar with the Federal Rules of Civil

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Procedure, the Federal Rules of Evidence or the Court’s Civil Local Rules. However, compliance

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with the requirements set forth in those rules is mandatory. The fact that plaintiff is not represented

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by counsel does not excuse his compliance with these rules. See Swimmer v. I.R.S., 811 F.2d 1343,

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1344 (9th Cir. 1987) (“[i]gnorance of court rules does not constitute excusable neglect, even if the

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litigant appears pro se.”) (citation omitted). A pro se party must follow the same rules as a party

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represented by counsel. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff also should

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be aware that a violation of the above rules also could have serious consequences in terms of the

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outcome of this action. For example, Plaintiff’s failure to follow the applicable procedural and

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evidentiary rules may result the exclusion of some or all of the evidence or testimony he plans to

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present at trial. In addition, the failure to comply with these rules, or any order of this Court, may

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result in the imposition of sanctions, up to and including the dismissal of this lawsuit. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).

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The Court notes that Plaintiff’s allegation that his legal documents were taken by prison
guards during a hospital visit on June 15, 2012 does not affect its decision to deny appointment of
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substitute counsel. Instead, the Court construes this statement as a request that the Court order

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prison officials at Folsom State Prison to return his legal documents. First, Plaintiff does not

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indicate whether these legal documents were eventually returned to him after his hospital visit.

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There is no indication that Plaintiff’s legal documents were confiscated. Therefore, the motion is

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DENIED as premature because Plaintiff has not shown a sufficient reason for this Court to interfere

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in the day-to-day operations of the prison. See Turner v. Safley, 482 U.S. 78, 84-86 (1987); Wright

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v. Rushen, 642 F.2d 1129, 1132 (9th Cir. 1981) (courts should avoid enmeshing themselves in

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minutiae of prison operations in name of constitution).

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If Plaintiff’s legal documents were, in fact, confiscated, he must bring this claim before the

United States District Court
For the Northern District of California

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United States District Court for the Eastern District of California. The events giving rise to any

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alleged claim stemming from the confiscation of his legal materials occurred at Folsom State Prison

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located in Represa, California, which lies within the venue of the Eastern District of California. See

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28 U.S.C. § 84(b). Therefore, venue is not proper in this district. See 28 U.S.C. § 1391(b).

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Accordingly, if Plaintiff wishes to pursue any constitutional claims stemming from the confiscation

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of his legal materials, he must file a complaint in the Eastern District of California.

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CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s motion for appointment of
substitute counsel. Dkt. 132.

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This Order terminates Docket no. 132.

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IT IS SO ORDERED.

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DATED: ___7/20/12

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
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G:\PRO-SE\SBA\CR.07\Meneweather4204.denyingAPPTattyAFTERwithdrawal.wpd

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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Case Number: CV07-04204 SBA

TOMAS L MENEWEATHER,

CERTIFICATE OF SERVICE

Plaintiff,
v.
B POWELL et al,
Defendant.

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United States District Court
For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 24, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said
envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk's office.

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Tomas Lopez Meneweather D35219
California State Prison - Sacramento
100 Prison Road
Represa, CA 95671
Dated: July 24, 2012
Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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