Nunez v. Ramirez

Filing 80

Order Appointing Pro Bono Counsel Pursuant to 28 USC 1915(e)(1). Attorneys David W. Beaudreau and Kurt David Hermansen appointed for Eduardo Nunez. Counsel shall file, if possible within fourteen (14) days, a formal written Notice of Substitution of Attorney signed by both Plaintiff and his newly appointed counsel. Signed by Judge Gonzalo P. Curiel on 10/3/2013.(All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EDUARDO NUNEZ,
CDCR #K-22707,

Case No.
Plaintiff,

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ORDER APPOINTING PRO BONO
COUNSEL PURSUANT TO
28 U.S.C. § 1915(e)(1) AND
S.D. CAL. GEN. ORDER 596

vs.
F. RAMIREZ, et al.,

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Defendants.

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In this civil rights action, filed pursuant to 42 U.S.C. § 1983, Plaintiff, a former prisoner

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proceeding in pro se, was granted leave to proceed in forma pauperis pursuant to 28 U.S.C.

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§ 1915(a) on April 6, 2007 (ECF Doc. No. 3). The only claims remaining before the Court are

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Plaintiff’s Eighth Amendment excessive force claims against Defendant F. Ramirez, as alleged

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in his First Amended Complaint (ECF Doc. No. 37).

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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

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

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The court must consider both “‘the likelihood of success on the merits as well as the ability of

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the [Plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.’” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)).

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Applying these standards on May 3, 2010, after his original complaint had already

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survived a motion to dismiss, Defendant Ramirez filed his Answer, and soon after pretrial case

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management and discovery cut-off dates had already been established, the Court found Plaintiff

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was “able to articulate the claims in his case,” and that no “exceptional circumstances” justified

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the appointment of counsel (ECF Doc. No. 19). However, Plaintiff’s excessive force claims

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against Defendant Ramirez have since survived summary judgment, and trial is imminent. See

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July 22, 2013 Report and Recommendation (“R&R”) (ECF Doc. No. 74), September 24, 2013

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Order Adopting R&R (ECF Doc. No. 78); Sept. 30, 2013 Final Scheduling Order (ECF Doc. No.

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79).

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General Order 596, which adopted a Plan for the Representation of Pro Bono Litigation

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in Civil Case filed in the Southern District of California, provides for appointment of pro bono

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counsel “as a matter of course for purposes of trial in each prisoner civil rights case where

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summary judgment has been denied.” Thus, because Plaintiff was incarcerated at Centinela

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State Prison at the time of the incident giving rise to this action,1 and his excessive force claims

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have survived summary judgment, the Court has randomly selected volunteer counsel from the

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Court’s Pro Bono Panel to represent Plaintiff during the course of all further proceedings before

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this Court. See S.D. Cal. General Order No. 596; 28 U.S.C. § 1915(e)(1).

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Conclusion and Order

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Accordingly, the Court hereby APPOINTS David W. Beaudreau and Kurt David

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Hermansen, of the Law Office of Kurt David Hermansen, 110 W. “C” Street, Suite 1903, San

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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, if possible within

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fourteen (14) days of this Order, a formal written Notice of Substitution of Attorney signed by

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Plaintiff remained incarcerated throughout the course of these proceedings, but on July 10,
2013, just before Magistrate Judge Skomal issued his R&R related to Defendant Ramirez’s Motion for
Summary Judgment, Plaintiff filed a Notice of Change of Address pursuant to S.D. CAL. CIVLR 83.11(b)
indicating his release from custody and a current address in Palmdale, California (ECF Doc. No. 73).
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both Plaintiff and his newly appointed counsel. Such substitution shall be considered approved

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by the Court upon filing, and Pro Bono Counsel shall thereafter be considered attorney of record

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for Plaintiff for all purposes during further proceedings before this Court. See S.D. CAL. CIVLR

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83.3(g)(1), (2).

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The Court further DIRECTS the Clerk of the Court to serve Mr. Beaudreau with a copy
of this Order at the address listed above upon filing. See S.D. CAL. CIVLR 83.3(f).
IT IS SO ORDERED.

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DATED: October 3, 2013

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HON. GONZALO P. CURIEL
United States District Judge

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