Carson v. Martinez
- Proceeding
- district
- Area
- civil
- Panel
- Janis L. Sammartino (author)
Analysis
The court considered a motion by a pro se prisoner plaintiff to appoint pro bono counsel for trial in a civil rights action where summary judgment had been partially denied. The court granted the motion and appointed a volunteer attorney from the local Pro Bono Panel to represent the plaintiff.
| What the court decided | The model |
|---|---|
Motion to Appoint Pro Bono Counsel granted“For the foregoing reasons, the Court GRANTS Carson’s Motion for Appointment of Counsel pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 94) and APPOINTS James D. Crosby, Esq., SBN 110383, 550 West C Street, Suite 790, San Diego, California, 92101, as Pro Bono Counsel to represent him.” | agree with court The court correctly applied the discretionary standard for appointing counsel in civil cases under 28 U.S.C. § 1915(e)(1). It relied on the local General Order 596, which mandates pro bono appointment for prisoner civil rights cases where summary judgment has been denied, and found that the plaintiff qualified because summary judgment was partially denied. The court also noted the increased likelihood of success on the merits following the partial denial of summary judgment. The appointment of a specific volunteer who agreed to take the case satisfies the procedural requirements of the local plan. |
The order itself: sound — The order is procedurally sound and relies on the correct statutory authority and Ninth Circuit precedent regarding the discretionary appointment of counsel in civil cases. It correctly applies the local General Order 596, which provides a specific mechanism for appointing pro bono counsel in prisoner civil rights cases where summary judgment has been denied. The court's reasoning connects the partial denial of summary judgment to the increased likelihood of success and the complexity of the upcoming trial, satisfying the 'exceptional circumstances' requirement. The cautionary footnote appropriately limits the scope of the appointment to prevent an expectation of future counsel.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID VINCENT CARSON, Case No.: 3:16-cv-01736-JLS-BLM CDCR #T-30386, 12 ORDER GRANTING MOTION Plaintiff, 13 TO APPOINT PRO BONO vs. COUNSEL PURSUANT 14 TO 28 U.S.C. § 1915(e)(1) F. MARTINEZ, et al., 15 AND S.D. CAL. GEN. ORDER 596 Defendants. 16 (ECF No. 94) 17 18 Plaintiff David Vincent Carson, a prisoner currently incarcerated at the Correctional 19 Training Facility (“CTF”) in Soledad, California, is proceeding pro se and has been granted 20 leave to proceed in forma pauperis in this civil action filed pursuant to 42 U.S.C. § 1983. 21 (See ECF No. 3.) 22 BACKGROUND 23 Currently pending before the Court is Carson’s Amended Complaint (“FAC”) which 24 alleges constitutional violations against several correctional officials employed at Richard 25 J. Donovan Correctional Facility in San Diego. (See FAC, ECF No. 35.) On September 26 3, 2019, the Court granted in part and denied in part a motion for summary judgment 27 brought on behalf of Defendants Garcia, Martinez, and Casian. (See ECF No. 83.) 28 1 On October 18, 2019, Carson filed a Motion to Appoint Counsel, and requesting the 2 Court consider his need for assistance in light of the upcoming trial. (See ECF No. 94.) 3 DISCUSSION 4 Although there is no right to counsel in a civil action, a court may under “exceptional 5 circumstances” exercise its discretion and “request an attorney to represent any person 6 unable to afford counsel.” 28 U.S.C. § 1915(e)(1); Palmer v. Valdez, 560 F.3d 965, 970 7 (9th Cir. 2009). The court must consider both “‘the likelihood of success on the merits as 8 well as the ability of the [Plaintiff] to articulate his claims pro se in light of the complexity 9 of the legal issues involved.’” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 10 1983)). 11 While Carson has so far demonstrated an ability to articulate his claims, amend his 12 pleading, engage in discovery, and to partially survive summary judgment while 13 proceeding without counsel, his likelihood of success on the merits—at least with respect 14 to his retaliation, excessive force, and failure to protect claims—increased as a result of the 15 Court’s September 3, 2019 summary judgment Order. Cf. Garcia v. Smith, 2012 WL 16 2499003, at *3 (S.D. Cal. 2012) (finding it “too early to determine the likelihood of success 17 on the merits” when it was “not certain whether plaintiff’s complaint would survive 18 [defendant’s pending motion for] summary judgment.”). 19 In light of the impending trial, the Court has elected to exercise its discretion 20 pursuant to 28 U.S.C. § 1915(e)(1), and has requested volunteer pro bono counsel for 21 purposes of representing Carson at trial and during any further proceedings before the 22 Court in this case under the provisions of this Court’s “Plan for the Representation of Pro 23 Bono Litigation in Civil Case filed in the Southern District of California,” and General 24 Order 596. The Pro Bono Plan specifically provides for appointment of pro bono counsel 25 “as a matter of course for purposes of trial in each prisoner civil rights case where summary 26 judgment has been denied.” See S.D. Cal. Gen. Order 596. Plaintiff qualifies for a pro 27 bono referral under the Plan because he is an indigent prisoner, and summary judgment has 28 been partially denied. (See ECF Nos. 3, 91.) Thus, because the Court finds the ends of 1 justice would be served by the appointment of pro bono counsel under the circumstances, 2 it referred Carson’s case to a volunteer lawyer on the Court’s Pro Bono Panel. On 3 November 18, 2019, that volunteer graciously agreed to represent Carson pro bono during 4 the course of all further proceedings held before this Court in this case. See S.D. Cal. Gen. 5 Order 596. 6 CONCLUSION & ORDER 7 For the foregoing reasons, the Court GRANTS Carson’s Motion for Appointment 8 of Counsel pursuant to 28 U.S.C. § 1915(e)(1) (ECF No. 94) and APPOINTS James D. 9 Crosby, Esq., SBN 110383, 550 West C Street, Suite 790, San Diego, California, 92101, 10 as Pro Bono Counsel to represent him. 11 Pursuant to S.D. Cal. CivLR 83.3.f.2, Pro Bono Counsel must file, within fourteen 12 (14) days of this Order, if possible and in light of Carson’s incarceration at CTF, a formal 13 written Notice of Substitution of Attorney signed by both Carson and his newly appointed 14 counsel. This Notice of Substitution will be considered approved by the Court upon filing, 15 and Pro Bono Counsel will thereafter be considered attorney of record for Carson for all 16 purposes during further proceedings before this Court, in this matter only, and at the 17 Court’s specific request. See S.D. Cal. CivLR 83.3.f.1, 2.1 18 /// 19 /// 20 21 22 23 1 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 24 of the proceedings, and has been able to locate an available volunteer attorney does not 25 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 26 referral or appointment. See Hedges v. Resolution Tr. Corp, 32 F.3d 1360, 1363 (9th Cir. 27 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 28 1 The Court further DIRECTS the Clerk of the Court to serve Mr. Crosby with a 2 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 Dated: November 21, 2019 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4