Opinion
No. CIV S-03-0241 LKK GGH P.
September 21, 2009
ORDER
Counsel for plaintiff's motion to withdraw came on for hearing on September 17, 2009. Kelly Smith, plaintiff's counsel, appeared at the hearing. Defendants' counsel, who had filed a statement of non-opposition to the motion elected not to appear, having been granted permission not to appear if counsel so chose. See Order, filed on August 27, 2009 (docket # 103). This court had previously rejected the stipulation signed by plaintiff and his counsel in support of the motion because it was evident that the presumption was that new counsel would and could be easily appointed without much consideration given to the extraordinary burden placed on this court in once again seeking counsel for plaintiff in this complicated, six-year-old civil litigation. The court was, and remains, dismayed that the recently scheduled settlement conference had to be vacated, apparently due to plaintiff's unwillingness to be transported to Sacramento.
Plaintiff, in his letter/memorandum directed to the Ninth Circuit but also filed in this court (and stamped by the Court Clerk as filed on September 2, 2009 (docket # 104)), mistakenly assumes that following this court's reference of this case to the King Hall Civil Rights Clinic that the clinic referred the case to his present counsel. However, it was the district court which was tasked with locating and appointing Mr. Smith from a limited list of prospective pro bono counsel for prisoner (or civil detainees') civil rights actions for this district. Any newly appointed counsel is likely at a minimum to be required to travel several times to Coalinga, where plaintiff is apparently currently housed, as well as to Shasta County, where the defendants are located. New counsel, even if such counsel can be located, is likely to need a significant amount of time to familiarize himself or herself with this case and may seek basically to re-start this rapidly aging case.
The document is dated August 28, 2009, on the face page, although plaintiff confusingly indicates that he served it, the day before, on August 27, 2009.
Nevertheless, after hearing plaintiff's counsel and also considering plaintiff pro se's filing, the court will grant the motion to withdraw. The court will seek to find replacement counsel; however, at this time, plaintiff will be required to proceed pro se, and will be required to conform to the deadlines set forth in the Order, filed on August 21, 2009 (docket # 100).
Accordingly, IT IS ORDERED that:
1. Plaintiff's counsel's motion to withdraw as counsel, filed on August 24, 2009 (docket # 101), is granted;
2. Plaintiff must proceed pro se until such time as new counsel can, if possible, be located and substituted in;
3. The parties are cautioned that the August 21, 2009, Order (docket # 100), setting a new deadline of January 15, 2010, for re-opened discovery, and a June 14, 2010, dispositive motion deadline remains in effect at this time;
4. In addition to counsel for both parties, this order is to be served upon plaintiff pro se at the mailing address plaintiff included in his letter at docket # 104, i.e.,: Terry J. Meyers, CO# 00064-6/P.O. Box 5003/Unit 7/Coalinga, California 93210-5003; and
5. The Clerk of the Court is to note in the docket of this case that plaintiff now proceeds pro se.