Holmes v. Estock et al

Filing 107

ORDER Temporarily Deferring Ruling on Defendants' Motion for Summary Judgment and Requiring Plaintiff's Counsel to Clarify Status as Attorney of Record. The Court temporarily DEFERS ruling on Defendant's motion for summary judgment and ORDERS Plaintiff's counsel to clarify his status as attorney of record for Plaintiff in this action by filing either a Notice of Continuing Appearance as Attorney of Record, a Notice of Substitution of Attorney of Record, or a Motion to Withdra w as Attorney of Record, on or before February 14, 2020. In the event counsel chooses to file a motion to withdraw, he must contact the undersigned's Chambers to obtain a hearing date prior to doing so. Signed by Judge Michael M. Anello on 1/28/2020. (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:16-cv-02458-MMA-BLM

CHARLES HOLMES,
Plaintiff,

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v.

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ORDER TEMPORARILY
DEFERRING RULING ON
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND
REQUIRING PLAINTIFF’S
COUNSEL TO CLARIFY STATUS
AS ATTORNEY OF RECORD

ESTOCK, et al.,

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Defendants.

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Plaintiff Charles Holmes, a California inmate, brings this civil rights action

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pursuant to 42 U.S.C. § 1983 alleging violations of his Eighth Amendment right to

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adequate medical care. Plaintiff, proceeding through counsel, filed a Third Amended

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Complaint (“TAC”) against Defendants Estock and Currier, whom he sues in their

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individual capacities. See Doc. No. 81. Plaintiff also sues in their official capacities

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Defendant Diaz, the Director of the California Department of Corrections and

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Rehabilitation; Defendant Montgomery, the Warden of the institution where Plaintiff is

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currently housed; and Defendant Nasir, the institution’s Healthcare Chief Executive

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Officer. See id. Defendants filed a motion for summary judgment as to all claims. See

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Doc. No. 96. To date, and despite receiving several extensions of time in which to do so,
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3:16-cv-02458-MMA-BLM

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see Doc. Nos. 100, 102, Plaintiff has not filed an opposition to the motion. Defendants

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filed a notice of non-opposition requesting the Court deem Defendants’ facts undisputed

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and enter judgement on their behalf. See Doc. No. 104.

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On January 10, 2020, the Court received a letter submitted on Plaintiff’s behalf by

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an individual identifying herself as Plaintiff’s advocate. See Doc. No. 106. According to

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Plaintiff’s advocate, she is familiar with these legal proceedings and she is acquainted

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with Plaintiff’s counsel of record. She points to Plaintiff’s counsel’s failure to file a

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response in opposition to Defendants’ pending motion for summary judgment, and she

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states that her efforts to contact Plaintiff’s counsel regarding this matter have been

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unsuccessful. Plaintiff’s advocate explains that she is “writing to see if there is a way to

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do an official ‘hold’ or ‘stay’ or this can be just a request to pause, as we try to find

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another lawyer to come in as co-counsel or locate [Plaintiff’s counsel] himself.” Id. at 1.

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“All motions to a judge of this court for ex parte orders must be made by a party

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appearing in propria persona or by an attorney of this court.” SD CivLR 83.3.g.1.

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Moreover, “[w]henever a party has appeared by an attorney, the party may not afterwards

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appear or act in the party’s own behalf in the action, or take any step in that action, unless

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an order of substitution has first have been made by the court.” Id. § 83.3.f.1. “Until

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such substitution is approved by the court, the authority of the attorney of record will

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continue for all proper purposes.” Id. § 83.3.f.2. As such, Plaintiff’s advocate lacks the

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standing or authority to request a stay of these proceedings, and Plaintiff must file the

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requisite notice of substitution as a condition precedent to representing himself and

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requesting any such relief.

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In the meantime, however, the Court has the authority and discretion to seek

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clarification regarding whether Plaintiff’s counsel continues to represent Plaintiff in these

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proceedings. Accordingly, the Court temporarily DEFERS ruling on Defendant’s

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motion for summary judgment and ORDERS Plaintiff’s counsel to clarify his status as

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attorney of record for Plaintiff in this action by filing either a Notice of Continuing

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Appearance as Attorney of Record, a Notice of Substitution of Attorney of Record, or a
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Motion to Withdraw as Attorney of Record, on or before February 14, 2020. In the

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event counsel chooses to file a motion to withdraw, he must contact the undersigned’s

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Chambers to obtain a hearing date prior to doing so.

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IT IS SO ORDERED.
DATE: January 28, 2020

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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3:16-cv-02458-MMA-BLM