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Nunez v. Ramirez

United States District Court, Ninth Circuit

October 3, 2013

EDUARDO NUNEZ, CDCR #K-22707, Plaintiff,
F. RAMIREZ, et al., Defendants.


GONZALO P. CURIEL, District Judge.

In this civil rights action, filed pursuant to 42 U.S.C. § 1983, Plaintiff, a former prisoner proceeding in pro se, was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a) on April 6, 2007 (ECF Doc. No. 3). The only claims remaining before the Court are Plaintiff's Eighth Amendment excessive force claims against Defendant F. Ramirez, as alleged in his First Amended Complaint (ECF Doc. No. 37).

While there is no right to counsel in a civil action, a court may under "exceptional circumstances" exercise its discretion and "request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). The court must consider both "the likelihood of success on the merits as well as the ability of the [Plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.'" Id. (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)).

Applying these standards on May 3, 2010, after his original complaint had already survived a motion to dismiss, Defendant Ramirez filed his Answer, and soon after pretrial case management and discovery cut-off dates had already been established, the Court found Plaintiff was "able to articulate the claims in his case, " and that no "exceptional circumstances" justified the appointment of counsel (ECF Doc. No. 19). However, Plaintiff's excessive force claims against Defendant Ramirez have since survived summary judgment, and trial is imminent. See July 22, 2013 Report and Recommendation ("R&R") (ECF Doc. No. 74), September 24, 2013 Order Adopting R&R (ECF Doc. No. 78); Sept. 30, 2013 Final Scheduling Order (ECF Doc. No. 79).

General Order 596, which adopted a Plan for the Representation of Pro Bono Litigation in Civil Case filed in the Southern District of California, provides for appointment of pro bono counsel "as a matter of course for purposes of trial in each prisoner civil rights case where summary judgment has been denied." Thus, because Plaintiff was incarcerated at Centinela State Prison at the time of the incident giving rise to this action, [1] and his excessive force claims have survived summary judgment, the Court has randomly selected volunteer counsel from the Court's Pro Bono Panel to represent Plaintiff during the course of all further proceedings before this Court. See S.D. Cal. General Order No. 596; 28 U.S.C. § 1915(e)(1).

Conclusion and Order

Accordingly, the Court hereby APPOINTS David W. Beaudreau and Kurt David Hermansen, of the Law Office of Kurt David Hermansen, 110 W. "C" Street, Suite 1903, San Diego, California, 92101, as Pro Bono Counsel for Plaintiff.

Pursuant to S.D. CAL. CIVLR 83.3(g)(2), Pro Bono Counsel shall file, if possible within fourteen (14) days of this Order, a formal written Notice of Substitution of Attorney signed by both Plaintiff and his newly appointed counsel. Such substitution shall be considered approved by the Court upon filing, and Pro Bono Counsel shall thereafter be considered attorney of record for Plaintiff for all purposes during further proceedings before this Court. See S.D. CAL. CIVLR 83.3(g)(1), (2).

The Court further DIRECTS the Clerk of the Court to serve Mr. Beaudreau with a copy of this Order at the address listed above upon filing. See S.D. CAL. CIVLR 83.3(f).


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