Dawes v. The People of the State of California et al

Filing 106

Order Appointing Pro Bono Counsel Pursuant to 28 USC 1915(e)(1). Attorney Karen L. Alexander and Courtney Baird appointed for William Dawes. Signed by Judge Michael M. Anello on 9/24/24.(All non-registered users served via U.S. Mail Service)(aas)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

WILLIAM DAWES,
Plaintiff,

12
13
14
15

Case No.: 19-cv-02122-MMA (VET)
ORDER

vs.

(1) OVERRULING OBJECTION;

HOWARD AUSBURY, et al.,
Defendants.

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

16
17
18
19
20

I.

INTRODUCTION

Plaintiff William Dawes (“Dawes”) is a California inmate who filed a pro se civil

21

rights action pursuant to 42 U.S.C. § 1983 in this case. In his original complaint, he

22

alleged Defendants destroyed his property, his public defenders did not properly

23

represent him, he was denied due process, and Defendants Bravo, Gene, Ugalde,

24

Ausbury, Silva, Shellano, Ayala, Solis, and Zuniga used excessive force on him while he

25

was incarcerated at R.J. Donovan Correctional Facility in 2016. Doc. No. 1. The

26

complaint and the amended complaint were screened and all of Dawes’s claims were

27

ultimately dismissed except for his excessive force claims. See Doc. Nos. 9, 13, 15. On

28
1

19-cv-02122-MMA (VET)

1

April 19, 2021, the Court stayed this case until Dawes’s related criminal case in state

2

court was resolved. See Doc. No. 46; see also S.D. Sup. Ct. No. SCS287189.

3

In August of 2024, Dawes’s state criminal charges were dismissed because of his

4

ongoing incompetency, and Defendants then asked this Court to lift the stay and hold a

5

hearing to appoint a guardian ad litem for Dawes under Federal Rule of Civil Procedure

6

17(c)(2), which requires the Court to “appoint a guardian ad litem ⸺ or issue another

7

appropriate order ⸺ to protect a[n] incompetent person who is unrepresented in an

8

action.” Fed. R. Civ. P. 17(c)(2); see Doc. No. 100-1 at 13; Doc. No. 100-2 at 2. In an

9

August 14, 2024 order, this Court lifted the stay; thus, while Dawes’s other claims were

10

dismissed during screening, his excessive force claims remain to be litigated in this

11

case. See Doc. No. 15. The Court also determined that to meet its obligation under

12

Rule 17(c)(2), it would reconsider Dawes’s motions to appoint counsel and referred the

13

matter to the Court’s Pro Bono Panel. Id. The Court has since identified volunteer pro

14

bono counsel willing to assist Dawes in prosecuting the claims remaining in his case, but

15

in the meantime, Dawes has filed an objection to the appointment of counsel. See Doc.

16

No. 105.

17
18
19

II.
A.

DISCUSSION

Dawes’s Objection
In his Objection to Appointment of Counsel, Dawes focuses on events that

20

occurred in his state criminal case and not this current federal civil rights case.

21

Specifically, he complains about his state public defenders, state court orders for

22

involuntary medications, and the conditions of his confinement. See Doc. No. 105.

23

While the Court understands that Dawes is upset and frustrated with how his state court

24

criminal case was handled, his case before this Court concerns only allegations by Dawes

25

that Defendants Bravo, Gene, Ugalde, Ausbury, Silva, Shellano, Ayala, Solis, and Zuniga

26

used excessive force on him while he was incarcerated at R.J. Donovan Correctional

27

Facility in 2016. See Doc. No. 13 at 16.

28
2

19-cv-02122-MMA (VET)

1

A civil litigant is not entitled to counsel as a matter of course, but because Dawes

2

was found incompetent to stand trial in state court in January of 2024, Rule 17(c)(2)

3

requires this Court to protect his interests in bringing his case. In order to do that, the

4

Court has sought and has since identified volunteer counsel to represent Dawes so he may

5

pursue the excessive force claims against Defendants Bravo, Gene, Ugalde, Ausbury,

6

Silva, Shellano, Ayala, Solis, and Zuniga that remain in this civil rights case pending

7

before this Court. See AT&T Mobility, LLC v. Yeager, 143 F. Supp. 3d 1042, 1053 (E.D.

8

Cal. Nov. 10, 2015) (citing Davis v. Walker, 745 F.3d 1303, 1311 (9th Cir. 2014)) (“The

9

appointment of counsel may serve as [an] alternative to the appointment of a guardian ad

10

litem.”) The Court is hopeful that this case can proceed if Dawes is represented by his

11

volunteer pro bono counsel. To that end, the Court encourages Dawes to assist and

12

cooperate with the volunteer attorneys appointed by this Order who will protect his

13

interests and justly prosecute his current civil rights claims. See United States ex rel

14

Gardner v. Madden, 352 F.2d 792, 793 (9th Cir. 1965) (noting that the appointment of

15

counsel in a civil case “is a privilege and not a right.”).
For these reasons, his Objection is OVERRULED.

16
17

B.

Appointment of Pro Bono Counsel

18

As noted, there is no right to counsel in a civil action, but a court may under

19

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

20

any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1); Palmer v. Valdez, 560

21

F.3d 965, 970 (9th Cir. 2009). The court generally must consider both “‘the likelihood of

22

success on the merits as well as the ability of the [Plaintiff] to articulate his claims pro se

23

in light of the complexity of the legal issues involved.’” Id. (quoting Weygandt v. Look,

24

718 F.2d 952, 954 (9th Cir. 1983)).

25

While Dawes adequately pleaded a factual basis for his excessive force claims at

26

the time he filed his amended complaint in this case on February 4, 2020, he has been

27

found incompetent in San Diego Superior Court criminal proceedings in Case No.

28

SCS287189. Doc. No. 100-1 at 4; Doc. No. 101 at 3. Thus, in addition to this Court’s
3

19-cv-02122-MMA (VET)

1

duty to protect Dawes’s interest in prosecuting his case under Rule 17(c)(2), see Davis v.

2

Walker, 745 F.3d 1303, 1310 (9th Cir. 2014), the Court’s Plan for the Representation of

3

Pro se Litigants in Civil Cases provides that “if it is apparent from the pleadings and

4

other materials before the Court that the pro se civil plaintiff has mental or other

5

disabilities substantially interfering with his or her ability to present the factual and legal

6

claims,” it may appoint volunteer counsel. See S.D. Cal. Gen. Order 596, adopted Aug.

7

3, 2011.

8

Because the ends of justice would be served by the appointment of pro bono

9

counsel under these circumstances, on August 14, 2022, the Court elected to exercise its

10

discretion pursuant to 28 U.S.C. § 1915(e)(1) and randomly referred Dawes’s case to its

11

Pro Bono Panel for potential representation. Volunteer counsel has since graciously

12

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

13

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

14

III.

15

CONCLUSION

For the reasons discussed, the Court OVERRULES Dawes’s objection to

16

appointment of counsel and APPOINTS Karen L. Alexander, and Courtney Baird of

17

Duane Morris LLP, 750 B Street, Suite 2900, San Diego, California, 92101 as Pro Bono

18

Counsel for Plaintiff William Dawes.

19

Pursuant to S.D. Cal. CivLR 83.3.f.2, Pro Bono Counsel must file, within twenty-

20

eight (28) days of this Order if possible, a formal written Notice of Substitution of

21

Attorney signed by both Plaintiff Dawes and his newly appointed counsel. This Notice

22

of Substitution will be considered approved by the Court upon filing, and Pro Bono

23

Counsel will thereafter be considered attorney of record for Dawes for all purposes

24

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

25

specific request. See S.D. Cal. CivLR 83.3.f.1, 2. 1

26
27
28

Dawes 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

1

4

19-cv-02122-MMA (VET)

1

The Court further DIRECTS the Clerk of the Court to forward Ms. Alexander and

2

Ms. Baird a copy of this Order upon entry in CM/ECF to [e-mail]

3

and [e-mail] and to also serve them with a copy via U.S. Mail at the

4

address listed above upon filing. See S.D. Cal. CivLR 83.3.f.2.

5
6

IT IS SO ORDERED.
Dated: September 24, 2024

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

proceedings, and has been able to locate available volunteer counsel 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 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.”).
5

19-cv-02122-MMA (VET)