Burns v. Decarr et al

Filing 85

ORDER Appointing Pro Bono Counsel: the Court hereby APPOINTS Robert H. Rexrode as Pro Bono Counsel for Plaintiff. Pro Bono Counsel shall file, within 14 days of this Order, a formal written Notice of Substitution of Attorney signed by both Plaintiff and his newly appointed counsel. Signed by Judge Janis L. Sammartino on 10/12/11.(All non-registered users served via U.S. Mail Service)(lmt)(cc: atty Rexrode)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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NELSON C. BURNS,

CASE NO.

07-CV-1984 JLS (WMc)

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Plaintiff,

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ORDER APPOINTING PRO BONO
COUNSEL PURSUANT TO
28 U.S.C. § 1915(e)(1)

vs.
DECARR, CROOK, VISTA DETENTION
FACILITY, VISTA SHERIFF’S
DEPARTMENT,
Defendants.

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Plaintiff, a state prisoner currently incarcerated at Corcoran State Prison in Corcoran, California,

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filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has been proceeding in pro se and

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has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). (ECF No. 6.)

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While there is no right to counsel in a civil action, a court may under “exceptional

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circumstances” exercise its discretion and “request an attorney to represent any person unable to afford

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counsel.” 28 U.S.C. § 1915(e)(1); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The court must

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consider both “‘the likelihood of success on the merits as well as the ability of the [Plaintiff] to articulate

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his claims pro se in light of the complexity of the legal issues involved.’” Id. (quoting Weygandt v.

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Look, 718 F.2d 952, 954 (9th Cir. 1983)).

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07cv1984 JLS (WMc)

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When he first initiated this case, Plaintiff requested, but was denied appointment of counsel.

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(ECF No. 5.) On July 18, 2011, the Court denied Plaintiff’s second motion for appointment of counsel,

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noting that he had adequately articulated both the factual and legal basis of his claims sufficient to defeat

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Defendants’ Motion for Summary Judgment. (ECF No. 70.)

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However, on August 3, 2011, the Southern District of California adopted, pursuant to General

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Order No. 596 and 28 U.S.C. § 1915(e)(1), a Plan for the Representation of Pro Se Litigants in Civil

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Cases. The Court has since exercised its discretion pursuant to 28 U.S.C. § 1915(e)(1) to identify this

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case as appropriate for pro bono representation under the Plan, and has randomly selected a volunteer

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attorney from the Court’s Pro Bono Panel.

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Conclusion and Order
Accordingly, the Court hereby APPOINTS Robert H. Rexrode, 427 “C” Street, Suite 310, San
Diego, California 92101, as Pro Bono Counsel for Plaintiff.

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Pursuant to S.D. CAL. CIVLR 83.3(g)(2), Pro Bono Counsel shall file, within fourteen (14) days

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of this Order, a formal written Notice of Substitution of Attorney signed by both Plaintiff and his newly

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appointed counsel. Such substitution shall be considered approved by the Court upon filing, and Pro

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Bono Counsel shall thereafter be considered attorney of record for Plaintiff for all purposes during

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further proceedings before this Court. See S.D. CAL. CIVLR 83.3(g)(1), (2).

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IT IS FURTHERED ORDERED that the Clerk of Court shall serve Mr. Rexrode with a copy
of the Order at the address listed above upon filing. See S.D. CAL. CIVLR 83.3(f)(2).

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DATED: October 12, 2011
Honorable Janis L. Sammartino
United States District Judge

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07cv1984 JLS (WMc)