Green v. Thiessen et al

Filing 102

Order Appointing Pro Bono Counsel Pursuant to 28 USC 1915(e)(1). Attorney Daniel A. Kaplan appointed for Cedric Eugene Green.. Signed by Judge John A. Houston on 07/31/2023.(All non-registered users served via U.S. Mail Service)(bdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CEDRIC EUGENE GREEN,
Plaintiff,

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

vs.

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Case No.: 3:17-cv-01156-JAH-BLM

DR. B. THIESSEN, et al.,
Defendants.

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Plaintiff Cedric Eugene Green, proceeding without counsel and in forma pauperis,

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filed a Complaint pursuant to the Civil Rights Act, 42 U.S.C. § 1983, on June 7, 2017,

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while he was incarcerated. (“Compl.”, ECF No. 1.) He has since been released, but alleges

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a staff psychologist and two correctional officers at Richard J. Donovan Correctional

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Facility acted with deliberate indifference to his health and safety in violation of the Eighth

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Amendment. (Id. at 1‒10.) Green claims that on July 14, 2016, Defendants either prevented

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or denied him access to mental health care, and that he attempted suicide by cutting his left

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wrist with a razor blade as a result. (Id. at 2‒12.)

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I.

Procedural History

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On March 29, 2023, the Court adopted in part the Magistrate Judge’s Report and

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Recommendation and granted in part and denied in part Defendants’ Motion for Summary

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Judgment pursuant to Fed. R. Civ. P. 56. (See ECF No. 98.) Specifically, the Court granted
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summary judgment as to Green’s Eighth Amendment claims on behalf of Defendant Solis,

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but found genuine disputes of material fact requiring a trial on the merits as to the Eighth

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Amendment violations he alleges were committed by Defendants Thiessen and Lopez. (See

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id. at 10‒13, 16.)

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At a status conference held on May 31, 2023, Green requested that the Court refer

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his case to its Pro Bono Panel pursuant to S.D. Cal. Gen. Order 596, and appoint volunteer

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counsel to represent him at trial. (See ECF No. 101.)

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II.

Appointment of Counsel

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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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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 Green has so far demonstrated an ability to articulate his claims and to

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

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

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against Defendants Thiessen and Lopez—increased as a result of the Court’s March 29,

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2023 Order. Cf. Garcia v. Smith, 2012 WL 2499003, at *3 (S.D. Cal. 2012) (finding it “too

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

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

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judgment.”).

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Thus, 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 requested volunteer pro bono counsel for purposes

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of representing Green at trial under the provisions of this Court’s “Plan for the

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

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California,” and General Order 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. While Green is no longer

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incarcerated, he was a prisoner throughout the course of this litigation, remains indigent

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now, and has partially overcome Defendants’ efforts to seek entry of summary judgment

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in their favor. Thus, because the ends of justice would be served by the appointment of pro

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bono counsel under the circumstances, the Court randomly referred Green’s case to a

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volunteer attorney on the Court’s Pro Bono Panel, and that volunteer has since graciously

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agreed to represent Green pro bono during the course of all further proceedings held before

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this Court in this case. See S.D. Cal. Gen. Order 596.

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III.

Conclusion

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For the reasons discussed, the Court APPOINTS Daniel A. Kaplan, SBN 179517,

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of the Law Offices Daniel A. Kaplan of Esq., 555 W Beech Street, Suite 500, San Diego,

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California 92101-2995, as Pro Bono Counsel for Plaintiff Cedric Eugene Green.

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Pursuant to S.D. Cal. CivLR 83.3.f.2, Pro Bono Counsel will 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 Green and his newly appointed counsel. This Notice of Substitution

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will be approved by the Court upon filing, and Pro Bono Counsel will thereafter be

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considered attorney of record for Mr. Green for all purposes during further proceedings

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before this Court, in this matter only, and at the Court’s specific request. See S.D. Cal.

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CivLR 83.3.f.1, 2.1

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Green is cautioned 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 him an
attorney of his choosing, or guarantee 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

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The Court further DIRECTS the Clerk of the Court to forward Mr. Kaplan a copy

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of this Order upon entry in CM/ECF to [e-mail] and to also serve

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Mr. Kaplan with a copy via U.S. Mail at the address listed above upon filing. See S.D. Cal.

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CivLR 83.3.f.2.

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IT IS SO ORDERED.
Dated: July 31, 2023

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JOHN A. HOUSTON
UNITED STATES DISTRICT JUDGE

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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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