Carroll v. Toele ( 2021 )

2 3 . 6 7 8 || _ UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || TREMAYNE CARROLL, Case No.: 3:20-cv-00079-BAS-RBM. 12 || CDCR #H-73384, - 3 -Plaintiff,| ORDER: ia || (1) GRANTING IN PART AND □□ DENYING IN PART PLAINTIFF’S 15 || C/O TOELE, etal., MOTION TO TERMINATE Defendants.| ATTORNEY-CLIENT AGREEMENT 16 (Doc. 35); 17 ig (2) GRANTING PLAINTIFF’S COUNSEL’S MOTION TO 19 WITHDRAW AS COUNSEL 0 (Doc. 36); 21 (3) DENYING AS MOOT PLAINTIFF'S JULY 21, 2021 PETITION FOR APPOINTMENT OF 23 |, COUNSEL (Doe. 40); AND 24 (4) DENYING AS MOOT 25 PLAINTIFF’S SEPTEMBER 10, 2021 _ PETITION FOR APPOINTMENT OF COUNSEL (Doc. 44) 27 38 [Does. 35, 36, 40, 44] ] 1 OL INTRODUCTION 2 Plaintiff Tremayne Carroll (“Plaintiff”) filed a motion to terminate attorney-client 3 agreement (“Motion to Terminate”), which was accepted nunc pro tunc on July 7, 2021. 4 |\(Doc. 35.) In Plaintiff's Motion to Terminate, Plaintiff asks the Court to: (1) terminate the 5 |/attorney-client agreement; (2) order that Plaintiffs counsel produce all case-related 6 ||documents and video footage to Plaintiff; (3) void any fee-related liens against Plaintiff 7 || due to the agreement’s alleged illegality; and (4) appoint Plaintiff counsel. (Id) □ 8 On July 12, 2021, Plaintiffs counsel, Charles Piccuta (“Counsel”), filed a motion to 9 || withdraw as counsel (“Motion to Withdraw”), in which Counsel claims he can no longer 10 |/continue to represent Plaintiff due to a fundamental breakdown in the attorney-client 11 |/relationship. (Doc. 36 at 2.) 12 Plaintiff filed a petition for appointment of counsel (“First Petition”), which was 13 || accepted nunc pro tunc on July 21, 2021. (Doc. 40.) In Plaintiff's First Petition, Plaintiff 14 || asks the Court to: (1) appoint counsel; (2) order that Counsel produce documents and video 15 || footage to Plaintiff; and (3) order a billing audit of Counsel’s clients over the past twelve 16 ||}months to ensure Plaintiff was not simultaneously billed with other clients. (7d. at 2.) 17 || Additionally, Plaintiff filed a subsequent petition for appointment of counsel (“Second □ □ 18 || Petition”), which was accepted nunc pro tunc on September 10, 2021. (Doc. 44.) The First 19 Second Petitions are duplicative as Plaintiff requests appointment of counsel in his 20 |!underlying Motion to Terminate. The undersigned will analyze Plaintiffs request for | 21 appointment of counsel as presented in the Motion to Terminate. Accordingly, the portion 22 |\of Plaintiff's First and Second Petitions which request appointment of counsel are moot. 23 || However, the First Petition also includes a request for an attorney billing audit, which will 24 || be analyzed separately below. 25 For the reasons discussed below, Plaintiffs Motion to Terminate is GRANTED IN 26 PART and DENIED IN PART. Counsel’s Motion to Withdraw is GRANTED. 27 || Plaintiffs First and Second Petitions for appointment of counsel are DENIED AS MOOT. 28 □ , 3:20-cv-00079-BAS-RBM 1 Il. PROCEDURAL HISTORY A. Third Amended Complaint . 3 On March 22, 2021, Plaintiff filed a third amended complaint (“TAC”) pursuant to 4 U.S.C. § 1983 for alleged constitutional violations while housed at Richard J. Donovan 5 || Correctional Facility (“RJD”).! (Doc. 27.) Plaintiff alleges a deprivation of his Eighth |. 6 Amendment right to protection from inhumane conditions of confinement after he was 7 allegedly left handcuffed and unattended in his cell for over two days. (id. at 6, { 30.) 8 || Additionally, Plaintiff alleges a deprivation of his First Amendment right against retaliation 9 after reporting alleged sexual misconduct by RJD employees. (id. at 7, 37-44.) 10 Il. DISCUSSION 11 A. Plaintiffs Motion to Terminate Attorney-Client Agreement and Counsel’s 12 Motion to Withdraw 13 Local Rule 83.3(f) requires that “a] notice of motion to withdraw as attorney of 14 record must be served on the adverse party and on the moving attorney’s client.” CivLR 15 ||83.3()G)(a). Rule 83.3 also provides that a declaration must be filed pertaining to the 16 || service requirement under subsection (a). See CivLR 83.3(f)(3)(b). Here, Counsel filed 17 served the Motion to Withdraw on Defendants and Plaintiff on July 12, 2021, per the 18 proof of service attached to the motion. (Doc. 36 at 4.) Additionally, Counsel filed a 19 || declaration in which he attests that he can no longer represent Plaintiff due to a fundamental 20 ||breakdown in the attorney-client relationship. _(/d. at 3.) Therefore, the procedural 21 |;requirements of Rule 83.3(f) are satisfied. 22 Permission to withdraw is left to the discretion of the Court. Robinson v. Portelle, 23 1:20-cv-1239 DAD JLT, 2021 WL 3761214, at *1 (E.D. Cal. Aug. 25, 2021). Courts 24 consider certain factors when ruling on a motion to withdraw, including: (1) the reasons 25 withdrawal is sought; (2) the prejudice withdrawal may cause to other litigants; (3) 26 ||the harm withdrawal might cause to the administration of justice; and (4) the degree to 27 28 plaintiff is currently housed at Mule Creek State Prison. (Doc. 27 at 2.) 3:20-cv-00079-BAS-RBM 1 |) which withdrawal will delay the resolution of the case. Jd. (citing Canandaigua Wine Co., 2 Inc. v. Edwin Moldauer, No.: 1:02-cv-06599 OWW DLB, 2009 WL 89141, at *1 (E.D. 3 Jan. 14, 2009) (“[t]he decision to grant or deny counsel’s motion to withdraw is 4 || committed to the discretion of the trial court.”)). 5 First, the reason why withdrawal is sought is legitimate as both Plaintiff and Counsel 6 || wish to terminate the attorney-client relationship due to a fundamental breakdown in the 7 ||relationship. (Doc. 35 at 1; Doc. 36 at 2.) Plaintiff alleges the attorney-client agreement 8 ||should be void due to its alleged illegality. (Doc. 35 at 1.) Counsel does not address this 9 issue in his response filed on September 10, 202 1, nor in his Motion to Withdraw; however, 10 |lit is clear Plaintiff and Counsel wish to terminate the representation. (Doc. 42.) 11 || Additionally, Defendants have not opposed either motion. Therefore, the request is 12 || unopposed. . 13 ~ Second, Defendants’ counsel has notice of Counsel’s Motion to Withdraw, as 14 ||Counsel claims defense counsel contacted him on August 17, 2021, to discuss the return 15 || or destruction of protected evidence. (/d. at 2.) Because all parties are aware of the intent 16 terminate representation, Defendants will not be prejudiced by withdrawal of Counsel. 17 As to factors three and four, there is no indication the case will be harmed or delayed 18 || by withdrawal of Counsel as there are no pending dispositive motions and the parties are 19 || still engaging in discovery pursuant to the scheduling order issued on April 29, 20212 20 ||(Doc. 30. at 2-3.) Additionally, the pretrial motions cutoff date has not yet passed.’ (Id.) 21 In light of the foregoing, the undersigned finds the balance of factors weighs in favor 22 ||of terminating the attorney-client agreement. Therefore, the Motion to Withdraw is 23 ||GRANTED and the portion of Plaintiff's Motion to Terminate which requests termination 24 of the attorney-client relationship is GRANTED. 25 26 || —————__— 27 ||* Parties must complete fact discovery by December 29, 2021. (Doc. 30 at 2.) 3 All motions, other than motions to amend or join parties, or motions in limine, must be filed on or before January 31, 2022. (Doc. 30 at 3.) 4 :mnN 1 i. Return of Documents and Video Footage 2 Plaintiff’ s Motion to Terminate also requests production of case documents and 3 video footage. (Doc. 35.) Counsel argues this relief is inappropriate pursuant to the 4 || protective order issued on May 24, 2021.4 (Doc. 32.) However, Counsel agrees to destroy 5 |{all documents produced by Defendants once Counsel is relieved from representation. 6 ||(Doc. 42 at 2.) . □ On October 5, 2021, the undersigned issued an order directing Counsel and 8 Defendants to file additional briefing addressing the appropriateness of disclosure of 9 discovery documents to Plaintiff pursuant to the May 24, 2021 protective order. (Doc. 45.) 10 |/In Counsel’s October 12, 2021 response, Counsel claims the protective order does not call 11 || for a situation where Plaintiff is without counsel. (Doc. 43 at 3.) Counsel alleges that 12 ||documents produced in discovery were not properly marked “CONFIDENTIAL” and 13 “CONFIDENTIAL — FOR COUNSEL ONLY.” (/d.) Defendants’ October 13, 2021 || briefing also confirms that documents and video footage produced in discovery were not 15 ||clearly labeled and they request the Court to grant them forty-five (45) days “to label the 16 documents to avoid ambiguity about whether a particular document is confidential or non- 17 confidential.” (Doc. 47 at 3.) Although unrelated to the discovery disclosure issue, 18 Defendants also request that this case be referred to mediation. (Id. at 4.) 19 - As the May 24, 2021 protective order is written, it does not contemplate a situation 20 || where Plaintiff is without counsel. (See Doc. 32.) Defendants produced over 6,000 pages 21 of documents and dozens of hours of surveillance footage in response to Plaintiff's Request 22 || for Production of Documents, set one. (Doc. 42 at 2.) Considering the extensive discovery 23 || produced to date, directing Counsel to destroy discovery would be an impediment to the 24 || discovery process. 25 26 On May 24, 2021, the undersigned issued an order granting the parties” joint motion for 27 protective order with modifications, including a designation of documents being marked og “CONFIDENTIAL” and “CONFIDENTIAL — FOR COUNSEL ONLY.” (Doc. 32 at 3-4.) . 5 nan 1 In the interest of justice and efficiency, Counsel is DIRECTED to promptly return 2 |/all produced documents and video footage to Defendants. Upon receipt, Defendants are 3 || DIRECTED to review, correctly label which documents and footage are confidential and 4 non-confidential, and produce such items to Plaintiff no later than December 13, 2021. 5 ||Should the parties wish to modify the current protective order to eliminate the 6 “CONFIDENTIAL—FOR COUNSEL ONLY” designation to include pro se litigants, they 7 ||may do so by way of motion. As to Defendants’ request to refer the matter to mediation, 8 || the undersigned notes that a mandatory settlement conference (“MSC”) is set for January 9 19, 2022. If the parties desire to mediate the case earlier, the parties may contact chambers 10 || to reschedule the MSC. □ 11 For the foregoing reasons, the portion of Plaintiff's Motion to Terminate which 12 ||requests production of documents and video footage from Counsel is DENIED. 13 ii. Liens . 14 In Plaintiff's Motion to Terminate, he requests that any liens against him be voided. 15 ||(Doc. 35 at 2.) In Counsel’s September 10, 2021 response, Counsel provides he “is not 16 ||claiming a lien for [ ] time billed and costs incurred” and “will stipulate to not claiming 17 || any fees and costs from [Plaintiff].” (Doc. 42 at 2.) Based upon the foregoing stipulation 18 || from Counsel, the portion of Plaintiff's Motion to Terminate which requests to void any 19 || liens is DENIED AS MOOT. 20 iii. Appointment of Counsel 21 The fourth and final request in Plaintiff's Motion to Terminate includes a request for 22 appointment of counsel. (Doc. 35.) . □ . 23 Generally, a person has no right to court-appointed counsel in civil actions. Palmer 24 Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding no abuse of discretion in denying 25 || appointment of counsel in a civil rights action) (citing Storseth v. Spellman, 654 F.2d 1349, 26 |} 1353 (9th Cir. 1981)). However, under 28 U.S.C. § 1915(e)(1), a court may appoint 27 |\counsel for indigent civil litigants under “exceptional circumstances.” Palmer, 560 F.3d 28 || at 970 (citing Agyeman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004), cert. 6 AON ANHIO DAC DDAT I || denied sub nom. Gerber v. Agyeman, 545 U.S. 1128 (2005). In determining whether 2 “exceptional circumstances” exist, the court must consider “the likelihood of success on 3 ||the merits as well as the ability of the petitioner to articulate his claims pro se in light of 4 |\the complexity of the legal issues involved.” Palmer, 560 F:3d at 970 (citing Weygandt v, 5 || Look, 718 F.2d 952, 954 (9th Cir. 1983)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 6 ||(9th Cir. 1991). Neither of these considerations is dispositive but instead must be viewed 7 |itogether. Terrell, 935 F.2d at 1017 (citing Wilborn v. Escalderon, 789 F.2d 1328, 1331 8 || (9th Cir. 1986)). oe 9 Only “rarely” will a federal court find a case to be so complex that it is appropriate 10 || to appoint counsel for a civil litigant who faces no loss of liberty in the controversy at hand. 11 See Dotson v. Doctor, No. 1:14-CV-00093-LJO-SKO (PC), 2014 WL 2208090, at *1 (E.D. 12 ||Cal. May 27, 2014) (“[clounsel is appointed in civil cases only rarely, if exceptional 13 circumstances exist”); see also United States v. Melluzzo, No. CV-09-8197-PCT-MHM, 14 |}2010 WL 1779644, at **2—3 (D. Ariz. May 3, 2010); see also Schwartzmiller v. Roberts, 15 || No. 93-1276-FR, 1994 WL 48967, at *2 (D. Or. Feb. 11, 1994). This includes civil rights 16 litigation involving excessive use of force, deliberate indifference to medical care, 17 retaliation, and cruel and unusual punishment claims. See Thompson v. Burach, 513 F. 18 || App’x 691, 693 (9th Cir. 2013) (upholding denial of appointment of counsel for pro se 19 || prisoner where excessive force claim did not demonstrate exceptional circumstances); see 20 || also Goldstein v. Flament, 167 F. App’x 678, 680-81 (9th Cir. 2006) (upholding denial of 21 ||appointment of counsel for pro se prisoner where retaliation and Eighth Amendment 22 ||deliberate indifference to medical needs. claims did not demonstrate _exceptional 23 circumstances); see also Miller v. McDaniel, 124 F. App’x 488, 489-90 (9th Cir. 2005) 24 || (upholding denial of appointment of counsel for pro se prisoner where claims involving 25 || Fourteenth Amendment right to informational privacy and Eighth Amendment right to be 26 from cruel and unusual punishment did not demonstrate exceptional circumstances 27 || and plaintiff had the ability to articulate his claims pro se). 28 2-90 _rv-NOhO7ORAC_RRY 1 Here, there are currently no “exceptional circumstances” to justify appointment of 2 |;counsel. Although this case was initially filed in 2020, the TAC was filed on March 22, 3 |}2021 and litigation is in its early stages. (Doc. 27.) The parties are still engaging in 4 || discovery, and the pretrial motions cutoff date has not yet passed. (Doc. 30 at 2-3.) At 5 early stage of litigation, it is difficult to determine Plaintiff's likelihood of success on 6 || the merits of his claims. As in Thompson, Goldstein, and Miller, Plaintiffs retaliation and 7 || cruel and unusual punishment claims are not sufficiently complex to. warrant appointment 8 of counsel. See Thompson, 513 F. App’x at 693; see also Goldstein, 167 F. App’x at 680- 9 8 1; see also Miller, 124 F. App’x at 489-90. Therefore, the undersigned does not find 10 exceptional circumstances exist to justify appointment of counsel at this time. To the extent 11 case proceeds beyond summary judgment, the Court will be ina better position to make 12 a determination. 13 For the foregoing reasons, the portion of Plaintiff's Motion to Terminate which 14 ||requests appointment of counsel is DENIED WITHOUT PREJUDICE. 15 |]. B. Plaintiff's First Petition as to Billing Audit 16 In Plaintiff? s First Petition, he requests that Counsel provide billing information from 17 of Counsel’s clients over the past twelve (12) months to ensure Plaintiff was not 18 simultaneously billed with other clients. (Doc. 40 at 2.) As set forth in the liens analysis 19 || in section A, subsection (ii), supra, Counsel is not seeking any fees and costs incurred from 20 || Plaintiff. Supra p. 6. As such, a billing audit is unnecessary and overly burdensome. 21 || Accordingly, the portion of Plaintiffs First Petition which requests a billing audit is 22 || DENIED AS MOOT. 23 IV. CONCLUSION 24 For the foregoing reasons, IT IS HEREBY ORDERED: □ 25 (1) Plaintiff's Motion to Terminate (Doc. 35) is GRANTED IN PART and 26 || DENIED IN PART as follows: 27. i. Plaintiff's request for termination of the attorney-client agreement is 28 GRANTED. _-3:20-cv-N0079-B □ □□□□□ 1 ii. Plaintiff's request for discovery documents and video footage from 2 | Counsel is DENIED. However, Counsel, Charles Piccuta, is . DIRECTED to promptly return all produced documents and video 4 footage to Defendants. Upon receipt, Defendants are DIRECTED to 5 || review, label, and produce documents to Plaintiff by December 13, 6 2021. . 7 | iii. Plaintiff's request to void attorney liens is DENIED AS MOOT. 8 iv. Plaintiff's request for appointment of counsel is DENIED WITHOUT 9 PREJUDICE. 10 (2) Counsel’s Motion to Withdraw (Doc. 36) is GRANTED. 11 (3) Plaintiff's First Petition (Doc. 40) and Second Petition (Doc. 44) are DENIED 12 || AS MOOT. 13 IT IS SO ORDERED. 14 || DATE: October 28, 2021 BAB nude Wey) 15 HON. RUTH BERMUDEZ MONTENEGRO 16 UNITED STATES MAGISTRATE JUDGE 17 18 . 19 □ 20 21 22 23 24 25 . 26 27 28 9 “32-90 □□□□□□□□□□□□□□□□□□□□□