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Nawabi v. Cates

United States District Court, E.D. California

September 25, 2019

IDRIS NAWABI, Plaintiff,
v.
CATES, et al., Defendants.

          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

         Currently 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 granted.

         I. PROCEDURAL HISTORY

         Plaintiff 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 defendants.

         Defendants 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         On 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.

         II. LEGAL STANDARD

         Withdrawal 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, 2012).

         The 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).

         Grounds for permissive withdrawal exist when “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation ...


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