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Thomas v. Wilber

United States District Court, E.D. California

May 1, 2015

JASON LATRELL THOMAS, Plaintiff,
v.
M. WILBER, et al., Defendants.

ORDER SANCTIONING STEVEN A. WHITWORTH, ESQUIRE, $500.00, REQUIRING SANCTIONS BE PAID WITHIN THIRTY DAYS, RELIEVING COUNSEL OF VOLUNTARY APPOINTMENT, AND REFERRING CASE BACK TO PRO BONO PROGRAM

SHEILA K. OBERTO, Magistrate Judge.

I. Background

This civil rights action was filed on January 4, 2010, by Plaintiff Jason Latrell Thomas, a state prisoner proceeding pro se and in forma pauperis. 42 U.S.C. § 1983. On April 20, 2014, following the partial denial of Defendants' motion for summary judgment, the case was scheduled for jury trial on Plaintiff's remaining claims for damages: (1) an Eighth Amendment excessive force claim against Defendants Vikjord and Hernandez, (2) a First Amendment retaliation claim against Defendant Vikjord arising out of the use of force on August 25, 2007, and (3) a First Amendment retaliation claim against Defendants Frescura and Price arising out of the use of force on or around February 18, 2007. Due to Plaintiff's mental health issues, which included temporary transfer into Department of State Hospitals custody, [1] the Court referred the case to the Pro Bono Program for appointment of counsel.[2] Steven A. Whitworth, Esquire, agreed to represent Plaintiff and on September 22, 2014, the Court issued an order appointing him as Plaintiff's counsel. 28 U.S.C. § 1915(e).

Mr. Whitworth subsequently repeatedly failed to comply with the orders requiring him to file an amended pretrial statement, and on April 28, 2015, he failed to appear for the order to show cause hearing. For the reasons which follow, Mr. Whitworth is relieved of his appointment as counsel for Plaintiff, and pursuant to the Court's inherent authority and Federal Rule of Civil Procedure 16(f), he is required to pay sanctions in the amount of $500.00.

II. Discussion

A. Procedural History

On April 30, 2014, the Court issued a scheduling order setting this case for trial on May 5, 2015.[3] (Doc. 97.) On September 22, 2014, Mr. Whitworth was appointed to represent Plaintiff, and the parties were ordered to confer regarding mutually agreeable dates to appear telephonically for a trial setting conference and to calendar the hearing. (Docs. 122, 123.)

On October 8, 2014, the Court set the telephonic trial setting hearing for December 16, 2014, pursuant to parties' agreement as to the date and time. (Doc. 125.) On December 16, 2014, the hearing was continued to December 19, 2014, because Mr. Whitworth was unavailable.[4] (Doc. 127.) On December 19, 2014, the parties, with another attorney again appearing for Mr. Whitworth, agreed to set the telephonic trial confirmation hearing ("TTCH") for May 6, 2015, and to set jury trial for June 2, 2015. (Doc. 128.) The Court issued an amended scheduling order setting Plaintiff's amended pretrial statement deadline for March 16, 2015;[5] the TTCH for May 6, 2015; and the jury trial for June 2, 2015. (Doc. 129.)

However, Plaintiff failed to file an amended pretrial statement and on March 17, 2015, the Court issued an order requiring Mr. Whitworth to file the amended pretrial statement by Friday, March 20, 2015.

Mr. Whitworth again failed to file Plaintiff's pretrial statement and on March 23, 2015, the Court issued an order requiring Mr. Whitworth to show cause within seven days why he should not be sanctioned in the amount of $500.00. Mr. Whitworth filed a response on April 2, 2015, apologizing and explaining he had been on a preplanned vacation for the last half of March. Mr. Whitworth also stated that his client was no longer incarcerated at California State Prison-Sacramento, creating logistical difficulties. However, Mr. Whitworth hoped to clear his schedule sufficiently to travel to California State Prison-Corcoran, meet with his client, and file the amended pretrial statement by April 13, 2015.

On April 7, 2015, the Court issued an order setting Plaintiff's amended pretrial statement deadline for April 20, 2015, and deferring discharge of the order to show cause pending the timely filing of the pretrial statement. Mr. Whitworth again failed to comply with the deadline, and on April 21, 2015, the Court issued an order vacating Defendants' pretrial statement deadline and the TTCH set for May 6, 2015; setting the order to show cause for hearing on April 28, 2015; and requiring Mr. Whitworth to appear in person.

The hearing was held on April 28, 2015, and Mr. Whitworth neither appeared for the hearing nor otherwise contacted the Court, either prior to the hearing or on the day of the hearing.

B. Sanctions for Failure to Comply with ...


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