United States District Court, S.D. California
ORDER GRANTING MOTION TO APPOINT PRO BONO COUNSEL
PURSUANT TO 28 U.S.C. § 1915(E)(1) AND S.D. CAL. GEN.
ORDER 596 (ECF NO. 94)
JANIS L. SAMMARTINO UNITED STATES DISTRICT JUDGE.
David Vincent Carson, a prisoner currently incarcerated at
the Correctional Training Facility (“CTF”) in
Soledad, California, is proceeding pro se and has been
granted leave to proceed in forma pauperis in this
civil action filed pursuant to 42 U.S.C. § 1983.
(See ECF No. 3.)
pending before the Court is Carson's Amended Complaint
(“FAC”) which alleges constitutional violations
against several correctional officials employed at Richard J.
Donovan Correctional Facility in San Diego. (See
FAC, ECF No. 35.) On September 3, 2019, the Court granted in
part and denied in part a motion for summary judgment brought
on behalf of Defendants Garcia, Martinez, and Casian.
(See ECF No. 83.)
October 18, 2019, Carson filed a Motion to Appoint Counsel,
and requesting the Court consider his need for assistance in
light of the upcoming trial. (See ECF No. 94.)
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)).
Carson has so far demonstrated an ability to articulate his
claims, amend his pleading, engage in discovery, and to
partially survive summary judgment while proceeding without
counsel, his likelihood of success on the merits-at least
with respect to his retaliation, excessive force, and failure
to protect claims-increased as a result of the Court's
September 3, 2019 summary judgment Order. Cf. Garcia v.
Smith, 2012 WL 2499003, at *3 (S.D. Cal. 2012) (finding
it “too early to determine the likelihood of success on
the merits” when it was “not certain whether
plaintiff's complaint would survive [defendant's
pending motion for] summary judgment.”).
light of the impending trial, the Court has elected to
exercise its discretion pursuant to 28 U.S.C. §
1915(e)(1), and has requested volunteer pro bono counsel for
purposes of representing Carson at trial and during any
further proceedings before the Court in this case under the
provisions of this Court's “Plan for the
Representation of Pro Bono Litigation in Civil Case filed in
the Southern District of California, ” and General
Order 596. The Pro Bono Plan specifically 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.” See
S.D. Cal. Gen. Order 596. Plaintiff qualifies for a pro bono
referral under the Plan because he is an indigent prisoner,
and summary judgment has been partially denied. (See
ECF Nos. 3, 91.) Thus, because the Court finds the ends of
justice would be served by the appointment of pro bono
counsel under the circumstances, it referred Carson's
case to a volunteer lawyer on the Court's Pro Bono Panel.
On November 18, 2019, that volunteer graciously agreed to
represent Carson pro bono during the course of all further
proceedings held before this Court in this case. See
S.D. Cal. Gen. Order 596.
foregoing reasons, the Court GRANTS
Carson's Motion for Appointment of Counsel pursuant to 28
U.S.C. § 1915(e)(1) (ECF No. 94) and
APPOINTS James D. Crosby, Esq., SBN 110383,
550 West C Street, Suite 790, San Diego, California, 92101,
as Pro Bono Counsel to represent him.
to S.D. Cal. CivLR 83.3.f.2, Pro Bono Counsel must file,
within fourteen (14) days of this Order, if possible and in
light of Carson's incarceration at CTF, a formal written
Notice of Substitution of Attorney signed by both Carson and
his newly appointed counsel. This Notice of Substitution will
be considered approved by the Court upon filing, and Pro Bono
Counsel will thereafter be considered attorney of record for
Carson for all purposes during further proceedings before
this Court, in this matter only, and at the Court's
specific request. See S.D. Cal. CivLR 83.3.f.1,
Court further DIRECTS the Clerk of the Court
to serve Mr. Crosby with a copy of this Order at the address
listed above upon filing. See S.D. Cal. CivLR