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Lopez v. Cook

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


November 10, 2010

ANDREW R. LOPEZ, PLAINTIFF,
v.
S. COOK, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner represented by appointed counsel from this court's pro bono attorney panel and proceeding with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court are a motion to continue the trial and trial related dates filed by plaintiff's counsel and an ex parte motion for the appointment of new counsel filed by plaintiff himself.

In the ex parte motion for the appointment of new counsel filed by plaintiff on his own behalf, he requests that the court appoint new counsel who is "familiar with gang validation issues and dealing with prison officials' attorney-client responsibilities[.]" (Mot. for Appointment of New Counsel at 4.) Plaintiff suggests that the court request assistance on his behalf from three specified law firms in San Francisco. Plaintiff also requests that all dates currently set in this case be vacated.

Plaintiff's own ex parte motion will be denied. Plaintiff is not entitled to the appointment of counsel, nor the appointment of counsel of his choice. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). Nevertheless, the court appointed attorney William Bishop to represent plaintiff at trial in this action once defendants' motion for summary judgment was denied only with respect to certain retaliation and procedural due process claims. The court fully intends to proceed with the settlement conference scheduled in this action for December 2, 2010. A writ of habeas corpus ad testificandum for plaintiff's presence at the settlement conference has already issued and remains in effect. See Writ, filed October 31, 2010.

The other motion before the court is the motion to continue the trial and trial related dates filed by plaintiff's counsel. On September 22, 2010, the court filed an order which set the following schedule in this case: settlement conference before the undersigned on December 2, 2010 at 10:00 a.m.; submission of confidential settlement conference statements by November 24, 2010; pretrial conference before the Honorable Judge Garland Burrell, Jr. on January 31, 2011 at 1:30 p.m.; filing of a joint pretrial statement no later than seven calendar days prior to the final pretrial conference; and trial to commence before the Honorable Judge Garland Burrell, Jr. on March 22, 2011 at 9:00 a.m. In his motion plaintiff's counsel indicates that a continuance is being requested because he planned to move the court to be relieved as counsel for plaintiff.*fn1 Because counsel has not yet been relieved as plaintiff's attorney, his motion to continue the trial and trial related dates will be denied at this time. If the scheduled settlement conference proves unsuccessful, the court will consider counsel's motion to withdraw as plaintiff's attorney at the hearing noticed for December 10, 2010. Depending on the court's ruling on that motion, if necessary, the court will at that time consider whether any of the dates set in this court's September 22, 2010, scheduling order should be vacated and reset.*fn2

In accordance with the above, IT IS HEREBY ORDERED that:

1. Plaintiff's November 3, 2010 ex parte application to continue trial and trial related dates (Doc. No. 233) is denied;

2. Plaintiff's November 8, 2010 request for the appointment of new counsel (Doc. No. 236) is denied;

3. Pursuant to the court's order, filed on September 22, 2010, the settlement conference set for December 2, 2010 at 10:00 a.m. before the undersigned shall proceed as scheduled, and the parties shall submit their confidential settlement conference statements by November 24, 2010. The writ of habeas corpus ad testificandum, issued on October 21, 2010, and directed to the Warden at California State Prison - Corcoran to compel plaintiff's presence at the scheduled settlement conference shall remain in full force and effect; and

4. A copy of this order shall be served on plaintiff Andrew Lopez at California State Prison - Corcoran.


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