United States District Court, E.D. California
ORDER GRANTING MOTION FOR LEAVE OF COURT TO WITHDRAW
AS COUNSEL OF RECORD FOR PLAINTIFF AND REQUIRING PLAINTIFF TO
EITHER OBTAIN SUBSTITUTE COUNSEL OR FILE A THIRD AMENDED
COMPLAINT (ECF NOS. 78, 79) SIXTY DAY DEADLINE
before the Court is a motion to withdraw as counsel for
Plaintiff in this action. A hearing on the motion was held on
September 25, 2019. Counsel Brian Bush appeared. Plaintiff
Idris Nawabi did not appear. Counsel William Burnanich
appeared for Defendants Brown, Beard, Hartley, Chapnick,
Borges, and Hancock. Having considered the moving papers, the
declaration attached thereto, arguments presented at the
September 25, 2019 hearing, as well as the Court’s
file, the motion to withdraw as counsel for Plaintiff is
Idis Nawabi, a former state prisoner, filed this civil rights
action pursuant to 42 U.S.C. § 1983 proceeding pro
se and in forma pauperis on February 25, 2013.
On February 20, 2014, the magistrate assigned to the action
dismissed Plaintiff’s complaint with leave to amend.
Plaintiff filed a first amended complaint on March 6, 2014.
On March 11, 2014, the magistrate judge screened the first
amended complaint and found that it stated a claim against J.
Hartley, R. Chapnick, B. Borges and Hancock for deliberate
indifference to serious medical needs in violation of the
Eighth Amendment and service was initiated on the named
Hartley, Chapnick, Borges and Hancock filed a motion to
dismiss on October 3, 2014. On October 27, 2014, a
substitution of attorney form was filed and counsel Raymond
Boucher was substituted as counsel for Plaintiff. On this
same date, the parties filed a stipulation for Plaintiff to
file an amended complaint.
November 3, 2014, this case was related to a group of cases
and reassigned to United States District Judge Lawrence J.
O’Neill and the undersigned. A second amended complaint
was filed on November 4, 2014, against Edmund G. Brown, Jr.,
Governor; Jeffrey Beard, Secretary of the California
Department of Corrections and Rehabilitation
(“CDCR”); James D. Hartley, Warden of Avenal
State Prison (“ASP”); R. Chapnick, ASP Chief
Medical Officer, M.D.; B. Borges, ASP Registered Nurse; and
Hancock, ASP Correctional Officer (collectively
“Defendants”) alleging deliberate indifference in
violation of the Eighth Amendment.
February 2, 2015, Defendants filed a motion to dismiss.
Plaintiff filed an opposition to the motion on April 13,
2015, and Defendants filed a reply on April 22, 2015. On May
20, 2015, findings and recommendations issued recommending
granting Defendants’ motion to dismiss and granting
Plaintiff an opportunity to file an amended complaint as to
those claims that had previously been found to state a claim.
Plaintiff filed objections to the findings and
recommendations on June 17, 2015; and Defendants filed
objections on July 8, 2014.
October 7, 2015, the district judge filed an order re the
findings and recommendations granting in part and denying in
part Defendants’ motion to dismiss. Plaintiff’s
Eighth Amendment conditions of confinement claim was
dismissed without leave to amend on the ground of qualified
immunity and Plaintiff was granted leave to amend his Eighth
Amendment claim alleging deliberate indifference to his
serious medical needs claim.
November 30, 2015, this matter was stayed at the stipulation
of the parties until the resolution of the appeals in the
related cases of Smith, et al. v. Schwarzenegger, et
al., appeal no. 15-17155, Hines v. Youssef,
appeal no. 15-16145, and Jackson, et al. v. Brown, et
al., appeal no. 15-17076.
February 1, 2019, the Ninth Circuit issued an order affirming
the district court decision in Smith, et al. v.
Schwarzenegger, et al., appeal no. 15-17155, and
Hines v. Youssef, appeal no. 15-16145, and affirming
in part and reversing in part in Jackson, et al. v.
Brown, et al., appeal no. 15-17076. Plaintiffs filed
requests for en banc review which were denied on
March 26, 2019. On April 3, 2019, the mandate issued in each
of the actions. The stay of this action was lifted on April
5, 2019, and Plaintiff was ordered to file a third amended
complaint within fourteen days.
April 18, 2019, the court granted the parties stipulation for
an extension of time for Plaintiff to file a third amended
complaint. On July 16, 2019, counsel filed a motion to
withdraw as attorney for Plaintiff in this action. On August
30, 2019, Defendants filed a statement of non-opposition to
the motion to withdraw.
of counsel is governed by the Rules of Professional Conduct
of the State Bar of California, and the Local Rules of
Practice for the United States District Court, Eastern
District of California. See L.R. 182; L.S. ex
rel. R.S. v. Panama Buena Vista Union Sch. Dist., No.
1:12-CV-00744 LJO, 2012 WL 3236743, at *1 (E.D. Cal. Aug. 6,
California Rules of Professional Conduct provide that if the
rules of a court require permission for an attorney to
withdraw, the attorney may not withdraw from employment in a
proceeding without the permission of such court. Cal. R.
Prof. Conduct 1.16(c). In addition, counsel must take
reasonable steps to avoid prejudicing the rights of the
client, including providing notice, allowing time for the
client to employ other counsel, and complying with applicable
laws and rules. Cal. R. Prof. Conduct 1.6(d). Mandatory
withdrawal is required where the lawyer knows or reasonably
should know that the client “is bringing an action,
conducting a defense, asserting a position in litigation, or
taking an appeal, without probable cause and for the purpose
of harassing or maliciously injuring any person;”
“the representation will result in violation of these
rules or of the State Bar Act;” “the
lawyer’s mental or physical condition renders it
unreasonably difficult to carry out the representation
effectively; or the client discharges the lawyer.” Cal.
R. Prof. Conduct 1.6(a).
for permissive withdrawal exist when “the client by
other conduct renders it unreasonably difficult for the
lawyer to carry out the representation ...