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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?