On March 31, 2010, this court adopted the magistrate judge's findings and recommendations, dismissed the second amended habeas petition, denied the motion for leave to file a third amended petition, and granted plaintiff forty-five days to file a civil rights complaint. See Docket Nos. 55 and 57. Plaintiff's counsel at the time, Marylou Hilberg, filed a motion to withdraw as counsel. Plaintiff filed a "fourth amended civil rights complaint" pro se on July 8, 2010, along with a motion for the appointment of counsel.
Good cause appearing, the motion to withdraw as counsel will be granted. The court further finds that appointment of new counsel, for the limited purpose of assessing plaintiff's pro se claims and, if appropriate, drafting and filing a fifth amended civil rights complaint is warranted.
Kathryn Druliner was selected by random draw from the court's attorney panel to represent petitioner. On July 30, 2010, Sujean Park, Pro Bono Coordinator, e-mailed Ms. Druliner concerning her selection and instructed her to respond within five days if she was unable to accept the appointment. Ms. Druliner has not communicated she is unable to accept the appointment. Therefore the court will appoint her as new counsel for the limited purpose of assessing petitioner's current pleading (i.e., the fourth amended civil rights complaint, Docket No. 59) and, if appropriate, assisting petitioner in filing a fifth amended civil rights complaint. Petitioner and counsel will have forty-five days from the entry of this order in which to file an amended pleading or notify the court that petitioner stands on the claims as pled in his fourth amended civil rights complaint of July 8, 2010.
Petitioner has also filed a motion to proceed in forma pauperis. The court has already granted plaintiff leave to proceed in forma pauperis, on April 25, 2007. See Docket No. 11. That order remains in effect. Therefore petitioner's motion is moot.
Finally, plaintiff has filed a motion to amend. The motion is essentially plaintiff's pro se request for leave to file his fourth amended complaint past the original forty-five day period allowed in the court's order of March 31, 2010. Good cause appearing, the court will accept the fourth amended civil rights complaint as timely filed.*fn1
Accordingly, IT IS HEREBY ORDERED that:
1. The motion to withdraw as counsel (Docket No. 58) is granted.
2. Plaintiff's motion for appointment of counsel (Docket No. 60) is granted for the limited purpose described herein.
3. Kathryn Druliner is appointed as counsel in this case. This appointment is for the limited purpose of assessing plaintiff's claims as pled in the fourth amended civil rights complaint and assisting petitioner in drafting and filing a fifth amended civil rights complaint, if plaintiff and counsel deem it appropriate.
4. Kathryn Druliner has forty-five days in which to file a fifth amended complaint on plaintiff's behalf or, in the alternative, to notify the court that plaintiff stands on the claims as pled in the fourth amended civil rights complaint. Ms. Druliner's appointment will terminate once she has complied with this order by submitting one of those two alternative filings.
5. Kathryn Druliner shall notify Sujean Park, at (916) 930-4278, or via email at firstname.lastname@example.org, if she has any questions related to the appointment.
6. The motion to proceed in forma pauperis (Docket No. 61) is denied as moot.
7. The motion to amend (Docket No. 62) is granted. Plaintiff's fourth amended civil rights complaint (Docket No. 59) is deemed timely filed.
8. The Clerk of the Court is directed to serve a copy of this order upon Kathryn Druliner, Law Office of Kathryn K. Druliner, 5150 Fair Oaks Blvd. ...