Arellano v. Officer Hodge

• Court: District Court, S.D. California
• Decided: November 16, 2021
• Docket: 3:14-cv-00590
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAUL ARELLANO, Jr. Case No.: 14-CV-590 JLS (JLB) CDCR #AH-1995, 12 ORDER (1) GRANTING MOTION Plaintiff, 13 TO APPOINT COUNSEL AND (2) vs. APPOINTING PRO BONO 14 COUNSEL PURSUANT TO OFFICER HODGE, et al., 15 28 U.S.C. § 1915(e)(1) AND Defendants. S.D. Cal. Gen. Order 596 16

17 (ECF No. 234) 18 19 Plaintiff Raul Arellano, a pro se prisoner currently incarcerated at Richard J. 20 Donovan Correctional Facility (“RJD”), in San Diego, California, is proceeding in forma 21 pauperis pursuant to 28 U.S.C. § 1915(a) in this consolidated civil rights action brought 22 pursuant to 42 U.S.C. § 1983. 23 PROCEDURAL HISTORY 24 On October 18, 2021, the Court consolidated for all purposes two separate cases 25 (Civil Case Nos. 14cv0590 and 15cv2247), both filed by Arellano against a correctional 26 officer (Defendant Hodge), a nurse practitioner (Defendant Velardi) and a doctor 27 (Defendant Dean) and alleging Eighth Amendment deliberate indifference claims related 28 to both his medication and his safety. (See ECF No. 239.) Before they were consolidated, 1 both Case No. 14cv0590 and Case No. 15cv2247 survived summary judgment in part. (Id. 2 at 2‒4.) As a result, Arellano’s Eighth Amendment claims as to Defendants Hodge, 3 Velardi, and Dean remain to be tried. (Id.) In light of consolidation, the Court denied 4 Arellano’s motion to appoint counsel in related underlying Case No. 15cv2247, but 5 deferred consideration of Arellano’s pending motion to appoint counsel in the lead Case 6 No. 14cv0590 (ECF No. 234) while it referred the consolidated civil action to its Pro Bono 7 Panel for potential appointment pursuant to S.D. Cal. General Order 596. (Id. at 7.) 8 APPOINTMENT OF COUNSEL 9 While there is no right to counsel in a civil action, a court may under “exceptional 10 circumstances” exercise its discretion and “request an attorney to represent any person 11 unable to afford counsel.” 28 U.S.C. § 1915(e)(1); Palmer v. Valdez, 560 F.3d 965, 970 12 (9th Cir. 2009). The court must consider both “the likelihood of success on the merits as 13 well as the ability of the [Plaintiff] to articulate his claims pro se in light of the complexity 14 of the legal issues involved.” Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 15 1983)). 16 While Plaintiff has so far demonstrated an ability to articulate his claims and to 17 partially survive summary judgment while proceeding without counsel, his likelihood of 18 success on the merits—at least with respect to his Eighth Amendment claims against 19 Defendants Hodge, Velardi, and Dean—has increased as a result of the Court’s summary 20 judgment orders. See ECF No. 230 (Case No. 14cv0590), ECF No. 115 (Case No. 21 15cv2247); cf. Garcia v. Smith, 2012 WL 2499003, at *3 (S.D. Cal. 2012) (finding it “too 22 early to determine the likelihood of success on the merits” when it was “not certain whether 23 plaintiff’s complaint would survive [defendant’s pending motion for] summary 24 judgment.”). 25 Thus, in light of the impending trial, the Court has elected to exercise its discretion 26 pursuant to 28 U.S.C. § 1915(e)(1) and has requested volunteer pro bono counsel for 27 purposes of representing Plaintiff for purposes of trial and during any further proceedings 28 before the Court in this case under the provisions of this Court’s “Plan for the 1 Representation of Pro Bono Litigation in Civil Case filed in the Southern District of 2 California,” and General Order 596. 3 The Pro Bono Plan specifically provides for appointment of pro bono counsel “as a 4 matter of course for purposes of trial in each prisoner civil rights case where summary 5 judgment has been denied.” See S.D. Cal. Gen. Order 596. Plaintiff qualifies for a pro 6 bono referral under the Plan because he is an indigent prisoner, and summary judgment 7 had been partially denied. Thus, finding that the ends of justice would be served by the 8 appointment of pro bono counsel under these circumstances, the Court has referred 9 Plaintiff’s case to a volunteer attorney on the Court’s Pro Bono Panel, and that volunteer 10 has graciously agreed to represent Plaintiff pro bono during the course of all further 11 proceedings held before this Court in this case. See S.D. Cal. Gen. Order 596. 12 CONCLUSION AND ORDER 13 For the reasons discussed, the Court GRANTS Plaintiff’s Motion (ECF No. 234) 14 and APPOINTS Michael S. Pedretti, Esq., SBN 157635, 406 9th Avenue #303, San Diego, 15 California, 92101, as Pro Bono Counsel for Plaintiff. 16 Pursuant to S.D. Cal. Civ. L.R. 83.3.f.2, Pro Bono Counsel must file, within fourteen 17 (14) days of this Order, if possible and in light of Plaintiff’s incarceration at RJD, a formal 18 written Notice of Substitution of Attorney signed by both Plaintiff and his newly appointed 19 counsel. This Notice of Substitution will be considered approved by the Court upon filing, 20 and Pro Bono Counsel will thereafter be considered attorney of record for Plaintiff for all 21 purposes during further proceedings before this Court, in this matter only, and at the 22 Court’s specific request. See S.D. Cal. Civ. L.R. 83.3.f.1, 2.1 23

24 25 1 Plaintiff 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 26 of the proceedings and has been able to solicit the assistance of an available volunteer 27 attorney does not entitle him to the appointment of counsel in this or any other case. Nor does it permit Plaintiff an attorney of his choosing or guarantee him any subsequent Pro 28 1 The Court further DIRECTS the Clerk of the Court to serve Mr. Pedretti with a copy 2 || of this Order at the address listed above upon filing. See S.D. Cal. Civ. L.R. 83.3.f.2. 3 IT IS SO ORDERED. 4 Dated: November 16, 2021 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 || 26 32 F.3d 1360, 1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil 27 || proceedings.”) (citation omitted); United States ex rel Gardner v. Madden, 352 F.2d 792, 28 793 (9th Cir. 1965) (noting that the appointment of counsel in a civil case “is a privilege and not a right.”’). + 2-1A_cy_ONSO0_TT S_TT B