Carson v. Martinez et al

Filing 96

ORDER granting 94 Motion to Appoint Pro Bono Counsel pursuant to 28 USC 1915(e)(1) and S.D. Cal. Gen. Order 596. The Court appoints James D. Crosby, Esq to represent Plaintiff. Signed by Judge Janis L. Sammartino on 11/21/2019. (cc: James D. Crosby) (All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID VINCENT CARSON,
CDCR #T-30386,

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

Plaintiff,

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vs.

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Case No.: 3:16-cv-01736-JLS-BLM

F. MARTINEZ, et al.,
Defendants.

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(ECF No. 94)

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Plaintiff David Vincent Carson, a prisoner currently incarcerated at the Correctional

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Training Facility (“CTF”) in Soledad, California, is proceeding pro se and has been granted

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leave to proceed in forma pauperis in this civil action filed pursuant to 42 U.S.C. § 1983.

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(See ECF No. 3.)

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BACKGROUND

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Currently pending before the Court is Carson’s Amended Complaint (“FAC”) which

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alleges constitutional violations against several correctional officials employed at Richard

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J. Donovan Correctional Facility in San Diego. (See FAC, ECF No. 35.) On September

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3, 2019, the Court granted in part and denied in part a motion for summary judgment

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brought on behalf of Defendants Garcia, Martinez, and Casian. (See ECF No. 83.)

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On October 18, 2019, Carson filed a Motion to Appoint Counsel, and requesting the
Court consider his need for assistance in light of the upcoming trial. (See ECF No. 94.)

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DISCUSSION

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Although 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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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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While Carson has so far demonstrated an ability to articulate his claims, amend his

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pleading, engage in discovery, and to partially survive summary judgment while

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proceeding without counsel, his likelihood of success on the merits—at least with respect

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to his retaliation, excessive force, and failure to protect claims—increased as a result of the

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Court’s September 3, 2019 summary judgment Order. Cf. Garcia v. Smith, 2012 WL

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2499003, at *3 (S.D. Cal. 2012) (finding it “too early to determine the likelihood of success

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on the merits” when it was “not certain whether plaintiff’s complaint would survive

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[defendant’s pending motion for] summary judgment.”).

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

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

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purposes of representing Carson at trial and during any further proceedings before the

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

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Bono Litigation in Civil Case filed in the Southern District of California,” and General

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Order 596. The Pro Bono Plan specifically provides for appointment of pro bono counsel

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“as a 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 qualifies for a pro

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

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been partially denied. (See ECF Nos. 3, 91.) Thus, because the Court finds the ends of
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justice would be served by the appointment of pro bono counsel under the circumstances,

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it referred Carson’s case to a volunteer lawyer on the Court’s Pro Bono Panel. On

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November 18, 2019, that volunteer graciously agreed to represent Carson pro bono during

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the course of all further proceedings held before this Court in this case. See S.D. Cal. Gen.

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Order 596.

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CONCLUSION & ORDER

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For the foregoing reasons, the Court GRANTS Carson’s Motion for Appointment

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of Counsel pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 94) and APPOINTS James D.

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Crosby, Esq., SBN 110383, 550 West C Street, Suite 790, San Diego, California, 92101,

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as Pro Bono Counsel to represent him.

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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 and in light of Carson’s incarceration at CTF, a formal

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written Notice of Substitution of Attorney signed by both Carson and his newly appointed

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counsel. This Notice of Substitution will be considered approved by the Court upon filing,

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and Pro Bono Counsel will thereafter be considered attorney of record for Carson for all

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purposes during further proceedings before this Court, in this matter only, and at the

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Court’s specific request. See S.D. Cal. CivLR 83.3.f.1, 2.1

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Carson 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
Carson an attorney of his choosing, or guarantee him any subsequent Pro Bono Panel
referral or appointment. See Hedges v. Resolution Tr. Corp, 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.”).
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The Court further DIRECTS the Clerk of the Court to serve Mr. Crosby with a
copy of this Order at the address listed above upon filing. See S.D. Cal. CivLR 83.3.f.2.
IT IS SO ORDERED.
Dated: November 21, 2019

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