Garcia v. Smith et al

Filing 185

ORDER granting 182 Motion to Appoint Pro Bono Counsel and Appointing Randy Scott Grossman and Peter Jordan Mazza as Pro Bono Counsel for Plaintiff. Pursuant to S.D.CAL. CIVLR 83.3(f)(2), Pro Bono Counsel must file, within fourteen (14) days of th is Order, if possible, a formal written Notice of Substitution of Attorney signed by both Plaintiff and his newly appointed counsel. The Court DIRECTS the Clerk of the Court to serve Mr. Grossman and Mr. Mazza with a copy of this Order at the address listed above upon filing, and further DIRECTS the Clerk to serve a courtesy copy of this Order upon Parisa Ijadi-Maghsoodi, Pro Bono Manager and Supervising Attorney, San Diego Volunteer Lawyer Program, Inc.. Signed by Judge John A. Houston on 6/9/16. (All non-registered users served via U.S. Mail Service)(copies mailed)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:10-cv-2433-JAH-MDD

LENIN GARCIA,
CDCR #J-12590,
Plaintiff,

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vs.

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D. SMITH, et al.,
Defendants.

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ORDER GRANTING MOTION
TO APPOINT PRO BONO
COUNSEL PURSUANT TO
28 U.S.C. § 1915(e)(1) AND
S.D. CAL. GENERAL
ORDER 596
[ECF No. 182]

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

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California, is proceeding pro se and in forma pauperis in this civil rights pursuant to 42

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U.S.C. § 1983 (ECF Nos. 3, 4).

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On February 28, 2014, the Court granted in part and denied in part Defendants’

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Motion for Summary Judgment pursuant to FED. R. CIV. P. 56 (ECF No. 89). Remaining

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to be tried are Plaintiff’s claims of conspiracy as to Defendants Chance, Moore, and

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Vasquez, and his claims of retaliation and excessive force as to Defendant Chance alone.

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See ECF No. 87 at 23; ECF No. 89 at 5-6; ECF No. 155 at 12.

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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

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3:10-cv-2433-JAH-MDD

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

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(9th Cir. 2009). The court must consider both “‘the likelihood of success on the merits as

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well as the ability of the [Plaintiff] to articulate his claims pro se in light of the complexity

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of the legal issues involved.’” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir.

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1983)).

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In order to provide a mechanism for requesting pro bono counsel under the

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circumstances prescribed by 28 U.S.C. § 1915(e)(1), this Court has established a “Plan for

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the Representation of Pro Bono Litigation in Civil Case filed in the Southern District of

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California,” which was adopted by the Judges of this District on August 3, 2011, pursuant

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to S.D. Cal. Gen. Order No. 596.

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The Pro Bono Plan specifically provides for appointment of pro bono counsel “as a

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matter of course for purposes of trial in each prisoner civil rights case where summary

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judgment has been denied.” See S.D. Cal. Gen. Order 596. Plaintiff is a prisoner whose

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civil rights claims have survived Defendants’ Motion for Summary Judgment, and the

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Court concluded, during the pretrial proceedings which have followed, that “the ends of

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justice will be served” by the appointment of pro bono counsel under the circumstances

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presented in this case. Id.

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Thus, pursuant to both 28 U.S.C. § 1915(e)(1) and General Order 596, the Court has

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now, with the helpful assistance of the San Diego Volunteer Lawyer Program, Inc.,

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identified and selected volunteer counsel who has graciously offered to represent Plaintiff

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on a pro bono basis during the course of all further proceedings before this Court. See S.D.

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Cal. General Order No. 596.

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CONCLUSION

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Accordingly, the Court hereby GRANTS Plaintiff’s Motion [ECF No. 182] and

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APPOINTS Randy Scott Grossman, SBN 177890, and Peter Jordan Mazza, SBN 239918,

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of Jones Day, 12265 El Camino Real, Suite 200, San Diego, California, 92130, as Pro Bono

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Counsel for Plaintiff.

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Pursuant to S.D. CAL. CIVLR 83.3(f)(2), Pro Bono Counsel must file, within fourteen

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(14) days of this Order, if possible, a formal written Notice of Substitution of Attorney

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signed by both Plaintiff and his newly appointed counsel. The Court will consider the

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Notice of Substitution approved upon filing, and Pro Bono Counsel will thereafter be

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considered the attorneys of record for Plaintiff for all purposes during further proceedings

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before this Court and in this matter only. See S.D. CAL. CIVLR 83.3(f)(1), (2).

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The Court DIRECTS the Clerk of the Court to serve Mr. Grossman and Mr. Mazza

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with a copy of this Order at the address listed above upon filing, see S.D. CAL. CIVLR

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83.3(f)(2), and further DIRECTS the Clerk to serve a courtesy copy of this Order upon

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Parisa Ijadi-Maghsoodi, Pro Bono Manager and Supervising Attorney, San Diego

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Volunteer Lawyer Program, Inc., 707 Broadway, Suite 1400, San Diego, CA 92101.

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All parties are advised that once Pro Bono Counsel has entered an appearance for

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Plaintiff, the Court intends to set a status conference to discuss pending and potential future

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hearing dates and trial schedules.

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IT IS SO ORDERED.

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DATED: June 9, 2016

_____________________________________
HON. JOHN A. HOUSTON
United States District Judge

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3:10-cv-2433-JAH-MDD