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Andre-Gollihar v. County of San Joaquin

United States District Court, Ninth Circuit

July 26, 2013

SANDRA ANDRE-GOLLIHAR, et al., Plaintiffs,
COUNTY OF SAN JOAQUIN, et al., Defendants.


KENDALL J. NEWMAN, District Judge.

On July 25, 2013, the court conducted a status conference in this matter to discuss future progress of this case and to address plaintiff's miscellaneous requests. (ECF No. 88.) After considering the parties' joint status report (ECF No. 87) and in light of the discussions at the status conference, the court now issues the following order and findings and recommendations.


Plaintiffs' operative fourth amended complaint alleges a single 42 U.S.C. § 1983 claim against defendants County of San Joaquin and deputy Robert Semillo (the "County Defendants"); defendants Jeffrey Carter and Marty Briseno (the "Parole Agent Defendants"); and the California Department of Corrections and Rehabilitation ("CDCR") in connection with the death of Casey Gollihar ("Decedent"). Plaintiff Sandra Andre-Gollihar is Decedent's surviving mother, and the remaining plaintiffs (Catherine Belle Gollihar, Anthony Joseph Gollihar, and Casey Joseph Gollihar) are Decedent's surviving minor children. Plaintiffs essentially allege that the Parole Agent Defendants in December 2007 wrongfully placed Decedent back on parole for fabricated reasons and informed police authorities that Decedent was armed and dangerous, which ultimately led to Decedent being unlawfully shot and killed by defendant deputy Semillo on January 21, 2008, in the course of executing an arrest warrant for Decedent. Plaintiffs claim damages for the wrongful death of Decedent in violation of their rights of Due Process and Equal Protection under the Fourteenth Amendment to the United States Constitution, including damages for the loss of Decedent's income, services, protection, care, comfort, support, society, assistance, guidance, counsel, love, advice, and companionship. (See, generally, ECF No. 63.)

The action has a protracted procedural history. Plaintiff Sandra Andre-Gollihar initially commenced the action on November 30, 2009, while proceeding without counsel. (ECF No. 1.) Although the court denied plaintiff's motions to appoint counsel, plaintiff subsequently retained Mr. Francis John Shehadeh as counsel and was able to add her minor grandchildren as plaintiffs in later amendments to the complaint. Because all parties were then represented by counsel, the case was referred to Judge England, the assigned district judge, for general pretrial matters. (ECF No. 42.) Thereafter, on September 20, 2011, the district judge granted the defendants' motions to dismiss, with a "final leave to amend. Plaintiffs may file a Fourth Amended Complaint, but no other leave to amend will be given." (ECF No. 61.) After several months, on January 21, 2012, plaintiffs finally filed the operative fourth amended complaint. (ECF No. 63.)

In early February 2012, the County Defendants and the Parole Agent Defendants filed motions to dismiss plaintiffs' fourth amended complaint. (ECF No. 65, 66.) After plaintiffs' counsel failed to file an opposition to the motions and failed to respond to the court's order to show cause regarding such failure, the district judge dismissed the entire action with prejudice on June 19, 2012. (ECF No. 69.) Thus, the court never reached the merits of the motions to dismiss.

Subsequently, on June 22, 2012, plaintiff Sandra Andre-Gollihar filed a motion to reopen the case, stating that plaintiffs' counsel had failed to communicate with her regarding the case and in essence requesting that plaintiffs not be punished for their counsel's misdeeds. (ECF No. 71.) Ultimately, on December 20, 2012, the district judge granted the motion to reopen the case and ordered plaintiffs' counsel to show cause why sanctions should not be imposed against him for his conduct. (ECF No. 74.) When plaintiffs' counsel failed to respond to that order, the district judge on January 9, 2013, imposed monetary sanctions, ordered plaintiffs' counsel to report himself to the California State Bar, and terminated plaintiffs' counsel's representation. (ECF No. 75.) Plaintiffs were given 60 days to obtain new counsel and the defendants were directed to refrain from renewing any motion to dismiss or other dispositive motion during that time. (Id.)

In March 2013, plaintiff Sandra Andre-Gollihar filed several motions for extensions of time to obtain counsel, noting that although numerous law firms had been reviewing the case, the attorneys could not finally determine whether to take the case, because plaintiffs were unable to obtain certain reports, pictures, and other evidence related to the underlying incident from defendants. (ECF Nos. 76, 77, 78.) On April 3, 2013, the case was reassigned to a different district judge, Judge Troy L. Nunley. (ECF No. 79.) Thereafter, on April 30, 2013, Judge Nunley granted plaintiffs an additional 45 days to obtain counsel. (ECF No. 80.) After plaintiffs were unsuccessful in their efforts to obtain counsel, the case was referred to the assigned magistrate judge pursuant to E.D. Cal. L.R. 302(c)(21) on June 7, 2013. (ECF No. 84.)

Prior to and after the referral pursuant to E.D. Cal. L.R. 302(c)(21), plaintiff Sandra Andre-Gollihar again filed several requests or motions for extension of time seeking essentially the following relief: (a) a further extension of time to obtain counsel; (b) an order requiring defendants to turn over pertinent documents and evidence related to the underlying incident; and (c) an order requiring her former attorney to return all her files. (ECF Nos. 81-82, 86.)

Finally, on June 11, 2013, the court set a status conference for July 25, 2013, to address further progress of the case and plaintiffs' miscellaneous requests. (ECF No. 85.) The court continued the stay on any routine motion practice pending the status conference. (Id.) The parties filed their joint status report on July 18, 2013, as ordered. (ECF No. 87.) Jurisdiction and venue are undisputed. (Id.)


Plaintiffs' Requests for Further Extension of Time to Obtain Counsel

The court denies plaintiffs' miscellaneous requests for a further extension of time to obtain counsel. As outlined above and as discussed at the conference, plaintiffs have already had numerous extensions of time to obtain counsel, and plaintiffs have made no showing that they are likely to successfully retain counsel in the immediate future. While the court is sympathetic to the fact that plaintiff Sandra Andre-Gollihar is faced with the daunting task of representing herself in federal court and that her minor grandchildren cannot continue as plaintiffs in this action without an attorney (as discussed below), the court has a duty to consider the interests of all the litigants, including the interest of defendants in moving the case forward.

The joint status report also suggests that plaintiffs request the appointment of counsel by the court. Generally, there is no constitutional right to appointed counsel in a civil action. Lassiter v. Dept. of Social Servs. , 452 U.S. 18 (1981). Pursuant to 28 U.S.C. § 1915(e)(1), however, a court "may request an attorney to represent any person unable to afford counsel, " but will do so only on a showing of "exceptional circumstances." Palmer v. Valdez , 560 F.3d 965, 970 (9th Cir. 2009); accord Terrell v. Brewer , 935 F.2d 1015, 1017 (9th Cir. 1991). "When determining whether exceptional circumstances' exist, a court must consider the likelihood of success on the merits as well as the ability of the petitioner to articulate his ...

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