Arellano v. Milton et al

Filing 106

ORDER GRANTING MOTION AND APPOINTING PRO BONO COUNSEL PURSUANT TO 28 U.S.C. SECTION 1915(e)(1) AND S.D. Cal. Gen. Order 596. The Court appoints Joe J. Villasenor as Pro Bono Counsel for Raul Arellano re: 101 . Signed by Judge John A. Houston on 11/13/2018. (All non-registered users served via U.S. Mail Service)(sjm)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

SOUTHERN DISTRICT OF CALIFORNIA

9
10
11

RAUL ARELLANO,
CDCR #AH-1995,

ORDER GRANTING MOTION
AND APPOINTING PRO BONO
COUNSEL PURSUANT TO
28 U.S.C. § 1915(e)(1) AND
S.D. Cal. Gen. Order 596

Plaintiff,

12
vs.

13
14

Case No.: 3:15-cv-02069-JAH-AGS

H. MELTON, et al.,
Defendants.

15

[ECF No. 101]

16
17

RAUL ARELLANO (“Plaintiff”), a prisoner proceeding in pro se and currently

18

incarcerated at Richard J. Donovan Correctional Facility (RJD), in San Diego, California,

19

was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) on

20

February 8, 2016, in this civil rights action which he has since been prosecuting on his

21

own behalf pursuant to 42 U.S.C. § 1983.

22

I.

23

Procedural History
On September 25, 2018, the Court adopted the Honorable U.S. Magistrate Judge

24

Clinton Averitte’s Report and Recommendation as amended, and granted in part and

25

denied in part Defendants’ Motion for Summary Judgment pursuant to FED. R. CIV. P. 56.

26

(See ECF No. 103.) As a result, Plaintiff’s Eighth Amendment inadequate medical care

27

claims as to Defendant Melton, and as alleged in his First Amended Complaint (ECF No.

28

12), remain to be tried. (See ECF No. 103 at 8, 10.)
1
3:15-cv-02069-JAH-AGS

1

On May 25, 2017, Plaintiff filed a Motion to Appoint Counsel pursuant to 28

2

U.S.C. § 1915(e)(1), but the Court deferred ruling on that Motion pending the outcome of

3

Defendants’ Motion for Summary Judgment. (See ECF No. 101.)

4

II.

5

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

6

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

7

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

8

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

9

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

10

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

11

954 (9th Cir. 1983)).

12

While Plaintiff has so far demonstrated an ability to articulate his claims and to

13

partially survive summary judgment while proceeding without counsel, his likelihood of

14

success on the merits—at least with respect to his Eighth Amendment claims as to

15

Defendant Melton—has increased as a result of the Court’s September 25, 2018 Order.

16

Cf. Garcia v. Smith, 2012 WL 2499003, at *3 (S.D. Cal. 2012) (finding it “too early to

17

determine the likelihood of success on the merits” when it was “not certain whether

18

plaintiff’s complaint would survive [defendant’s pending motion for] summary

19

judgment.”).

20

Thus, in light of the impending trial, the Court has elected to exercise its discretion

21

pursuant to 28 U.S.C. § 1915(e)(1), and has requested volunteer pro bono counsel for

22

purposes of representing Plaintiff for purposes of trial and during any further proceedings

23

before the Court in this case under the provisions of this Court’s “Plan for the

24

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

25

California,” and General Order 596.

26

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

27

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

28

judgment has been denied.” See S.D. CAL. GEN. ORDER 596. Plaintiff qualifies for a pro
2
3:15-cv-02069-JAH-AGS

1

bono referral under the Plan because he is an indigent prisoner, and summary judgment

2

had been partially denied. (See ECF No. 105.) Thus, finding that the ends of justice

3

would be served by the appointment of pro bono counsel under these circumstances, the

4

Court has referred Plaintiff’s case to a volunteer attorney on the Court’s Pro Bono Panel,

5

and that volunteer has graciously agreed to represent Plaintiff pro bono during the course

6

of all further proceedings held before this Court in this case. See S.D. CAL. GEN. ORDER

7

596.

8

III.

Conclusion and Order
For the reasons discussed, the Court GRANTS Plaintiff’s Motion (ECF No. 101)

9
10

and APPOINTS Joe J. Villasenor Esq., SBN 265703, P.O. Box 13685, La Jolla,

11

California, 92037, as Pro Bono Counsel for Plaintiff.

12

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

13

(14) days of this Order, if possible and in light of Plaintiff’s incarceration at RJD, a

14

formal written Notice of Substitution of Attorney signed by both Plaintiff and his newly

15

appointed counsel. This Notice of Substitution will be considered approved by the Court

16

upon filing, and Pro Bono Counsel will thereafter be considered attorney of record for

17

Plaintiff for all purposes during further proceedings before this Court, in this matter only,

18

and at the Court’s specific request. See S.D. CAL. CIVLR 83.3.f.1, 2.1

19

///

20
21
22
23
24
25
26
27
28

Plaintiff is cautioned, however, that the Court’s Pro Bono Panel is a precious and limited
resource. The fact that the Court has found this case suitable for appointment at this stage
of the proceedings, and has been able to locate an available volunteer attorney does not
entitle him to the appointment of counsel in this or any other case. Nor does it permit
Plaintiff an attorney of his choosing, or guarantee him any subsequent Pro Bono Panel
referral or appointment. See Hedges v. Resolution Trust Corp (In re Hedges), 32 F.3d 1360,
1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil proceedings.”)
(citation omitted); United States ex rel Gardner v. Madden, 352 F.2d 792, 793 (9th Cir.
1965) (noting that the appointment of counsel in a civil case “is a privilege and not a
right.”).
1

3
3:15-cv-02069-JAH-AGS

1

The Court further DIRECTS the Clerk of the Court to serve Mr. Villasenor with a

2

copy of this Order at the address listed above upon filing. See S.D. CAL. CIVLR 83.3.f.2.

3

IT IS SO ORDERED.

4
5
6
7

Dated: November 13, 2018
Hon. John A. Houston
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
3:15-cv-02069-JAH-AGS