St. Sauver v. Byrd-Hunt

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENNETH ST. SAUVER, Case No.: 3: 20-cv-00584 MDD CDCR #BA-5720, 12 ORDER GRANTING MOTION Plaintiff, 13 AND APPOINTING PRO BONO vs. COUNSEL PURSUANT TO 14 28 U.S.C. § 1915(e)(1) AND T. BYRD-HUNT, 15 S.D. Cal. Gen. Order 596 Defendant. 16 [ECF No. 38] 17 18 Plaintiff Kenneth St. Sauver, a prisoner proceeding pro se and currently incarcerated 19 at San Quentin State Prison, was granted leave to proceed in forma pauperis pursuant to 20 28 U.S.C. § 1915(a) on April 29, 2020, in this civil rights action which he has since been 21 prosecuting on his own behalf pursuant to 42 U.S.C. § 1983. 22 I. BACKGROUND 23 On June 16, 2022, the Court granted in part and denied in part Defendant’s Motion 24 for Summary Judgment pursuant to Fed. R. Civ. P. 56. (See ECF No. 32.) As a result, 25 only Plaintiff’s Eighth Amendment excessive force claim arising on June 28, 2018 against 26 Defendant Correctional Officer Byrd-Hunt remains to be tried. (Id. at 2; see also ECF No. 27 28 at 10‒17.) 28 / / / 1 On September 13, 2022, Plaintiff filed a Motion for Appointment of Counsel seeking 2 the referral of his case to the Court’s “Pro Bono Project.” (See ECF No. 38.) 3 II. MOTION FOR APPOINTMENT OF COUNSEL 4 While 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 Plaintiff has so far demonstrated an ability to articulate his claims and to 12 partially survive summary judgment while proceeding without counsel, he remains 13 incarcerated and his likelihood of success on the merits—at least with respect to his 14 allegations that Officer Byrd-Hunt used excessive force by striking him unconscious with 15 her baton on June 28, 2022—increased as a result of the Court’s summary judgment Order. 16 Cf. Garcia v. Smith, 2012 WL 2499003, at *3 (S.D. Cal. 2012) (finding it “too early to 17 determine the likelihood of success on the merits” when it was “not certain whether 18 plaintiff’s complaint would survive [defendant’s pending motion for] summary 19 judgment.”). 20 Thus, in light of Plaintiff’s recent Motion and the impending trial, the Court has 21 elected to exercise its discretion pursuant to 28 U.S.C. § 1915(e)(1), and has requested 22 volunteer pro bono counsel to represent Plaintiff for purposes of trial and during any further 23 proceedings before the Court in this case under the provisions of this Court’s “Plan for the 24 Representation of Pro Bono Litigation in Civil Case filed in the Southern District of 25 California,” and General Order 596. 26 The Pro Bono Plan specifically provides for appointment of pro bono counsel “as a 27 matter of course for purposes of trial in each prisoner civil rights case where summary 28 judgment has been denied.” See S.D. Cal. Gen. Order 596. Plaintiff qualifies for a pro 1 bono referral under the Plan because he is an indigent prisoner, and summary judgment 2 had been partially denied. Thus, because the Court finds the ends of justice would be 3 served by the appointment of pro bono counsel under the circumstances, it randomly 4 referred Plaintiff’s case to its Pro Bono Panel. On September 28, 2022, a volunteer attorney 5 graciously agreed to represent Plaintiff pro bono during the course of all further 6 proceedings held before this Court. See S.D. Cal. Gen. Order 596. 7 III. CONCLUSION AND ORDER 8 For the reasons discussed, the Court GRANTS Plaintiff’s Motion to Appoint Pro 9 Bono Counsel (ECF No. 38) and APPOINTS Martin G. Molina, of the Law Offices of 10 Martin G. Molina, 185 West F Street, Suite 100, San Diego, California, 92101, as Pro Bono 11 Counsel for Plaintiff. 12 Pursuant to S.D. Cal. CivLR 83.3.f.2, Pro Bono Counsel is directed to file, within 13 fourteen (14) days of this Order, if possible and in light of Plaintiff’s incarceration at San 14 Quentin, a formal written Notice of Substitution of Attorney signed by both Plaintiff and 15 his newly appointed counsel. This Notice of Substitution will be considered approved by 16 the Court upon filing, and Pro Bono Counsel will thereafter be considered attorney of 17 record for Plaintiff for all purposes during further proceedings before this Court, in this 18 matter only, and at the Court’s specific request. See S.D. Cal. CivLR 83.3.f.1, 2.1 19 / / / 20 21 22 1 Plaintiff is cautioned, however, that the Court’s Pro Bono Panel is a precious and limited 23 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 24 entitle him to the appointment of counsel in this or any other case. Nor does it permit 25 Plaintiff an attorney of his choosing, or guarantee him any subsequent Pro Bono Panel referral or appointment. See Hedges v. Resolution Trust Corp (In re Hedges), 32 F.3d 26 1360, 1363 (9th Cir. 1994) (“[T]here is no absolute right to counsel in civil proceedings.”) 27 (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 28 1 The Court further DIRECTS the Clerk of the Court to serve Mr. Molina with a copy 2 || of this Order by email at mmolinaesq@outlook.com and by U.S. Mail at the address listed 3 above upon filing. See S.D. Cal. CivLR 83.3.f.2. 4 IT IS SO ORDERED. 5 || Dated: tember 29, 2022 ated: Septembe , My, + ul bs. [ 7 Hon. Mitchell D. Dembin United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4