IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
December 23, 2008
NYLES LAWAYNE WATSON, PLAINTIFF,
D.K. SISTO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's 1) motion for a temporary restraining order (TRO)/preliminary injunctive relief, opposed by defendants, filed on 8/04/08, to which defendants filed their opposition,*fn1 and 2) motion to compel, filed on 8/19/08, to which defendants Warden Sisto, Dr. Noriega, Dr. Traquina, Dr. Tan, and Dr. Rohrer filed their opposition on 8/25/08, and defendant Naku filed a separate opposition on 9/03/08.*fn2
After this court's careful review, the undersigned finds the questions raised and left unresolved by the moving, opposition, supplemental and reply papers with regard to plaintiff's request for preliminary injunctive relief not to be amenable to resolution on the showing therein. The court finds the allegations sufficiently colorable and the circumstances sufficiently exceptional to warrant appointment of voluntary counsel and herein will appoint counsel drawn from the voluntary members of the civil rights pro bono panel. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). As plaintiff will be proceeding with counsel, the court will vacate the pending motions without prejudice to their renewal by counsel for plaintiff, as appropriate. Accordingly, the court finds as follows:
Efforts to obtain legal representation without order of this court would be futile;
1. Plaintiff's income is 125 percent or less of the current poverty threshold established by the Office of Management and Budget of the United States and is otherwise without resources to obtain counsel;
2. This case is of a type that attorneys in this district ordinarily do not accept without prepayment of a fee;
3. This case is not a fee generating case within the meaning of California Business and Professions Code § 8030.4(g); and
4. This case has sufficient merit to warrant appointment pursuant to General Order No. 230.
Therefore, this court orders as follows:
1. James P. Baker is appointed as attorney for plaintiff pursuant to General Order No. 230;
2. Counsel is directed to contact the Clerk's Office to make arrangements for copies of the file;
3. Counsel shall submit all deposition transcript costs for payment pursuant to § 8030.6 of the California Business and Professions Code. All other contemplated costs shall be handled as described in General Order No. 230;
4. This case is to be set on this court's law and motion calendar for a status conference within 60 days, pursuant to a stipulation to be filed by plaintiff's and defendants' counsel after coordinating with the undersigned's courtroom deputy, Valerie Callen, at (916) 930-4199;
5. The Clerk shall electronically serve a copy of this order on James P. Baker at firstname.lastname@example.org.
IT IS FURTHER ORDERED that:
1. Plaintiff pro se's request for a telephonic hearing on his request for preliminary injunctive relief, filed on 8/19/08 (# 29), is denied as unnecessary.
2. Plaintiff's motion for a TRO/TRO/preliminary injunctive relief, filed on 8/04/08 (# 24), is vacated from the court's calendar without prejudice to its renewal, as appropriate, by counsel now appointed for plaintiff;
3. Plaintiff's motion to compel, filed on 8/19/08 (#32), is also vacated without prejudice to appropriate renewal.