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Flanigan is “severally mentally handicapped and not competent to represent

himself.” (See Petition ¶ 1.)

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

HERBERT MIMS, as guardian ad litem for

ALFRED FLANIGAN,

Plaintiff,

 v.

CITY OF SAN LEANDRO, et al.,

Defendants

 /

No. C-09-2052 MMC

ORDER GRANTING PETITION FOR

APPROVAL OF COMPROMISE OF

DISPUTED CLAIM; SETTING APRIL 9,

2010 STATUS CONFERENCE;

VACATING ALL OTHER DATES AND

DEADLINES

Before the Court is plaintiff Herbert Mims’s (“Mims”) “Petition for Approval of

Compromise of Disputed Claim” (“Petition”), filed February 12, 2010.

By order filed May 13, 2009, the Court appointed Mims to serve as guardian at litem

for the purpose of alleging herein claims on behalf of Alfred Flanigan (“Flanigan”).1

 On

December 8, 2009, the parties attended a mediation conducted by the court-appointed

mediator and reached a settlement of the claims brought on behalf of Flanigan. By the

instant Petition, Mims seeks court approval of the settlement, the terms of which are as

follows: (1) defendant City of Leandro will pay the total sum of $36,000 to settle the claims

brought on behalf of Flanigan; (2) San Leandro police officers will take Flanagan for a ride

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2

The claims alleged herein are brought pursuant to 42 U.S.C. § 1983. Where, in a

case brought thereunder, federal law does not provide a rule of decision, state law not

inconsistent with federal law applies. See 42 U.S.C. § 1988. The provisions of the

California Probate Code applicable to the approval of the compromise of a claim brought on

behalf of a disabled person are not inconsistent with federal law, and, accordingly, apply

herein. See, e.g., Nice v. Centennial Area Sch. Dist., 98 F. Supp. 2d 665, 668-69 (E.D. Pa.

2000) (applying state law to determine whether settlement of claim under § 1983 was in

best interests of minor).

3

The Petition is silent as to whom such remaining balance is to be paid and as to

how it will be maintained for the benefit of Flanigan.

2

in a patrol car; and (3) San Leandro Police Department will visit the Arc of Alameda in order

to familiarize themselves with the mentally handicapped persons that it serves. (See

Petition ¶ 4.)

Having read and considered the Petition and having reviewed the file in this matter,

the Court hereby GRANTS the petition, as follows:

1. In light of the nature of the injuries incurred, as described by Mims in the Petition,

the Court finds the terms of the settlement are fair and reasonable, and that the settlement

is in the best interests of Flanigan.

2. The amount of attorneys fees sought, specifically, $12,000, and the amount of

expenses claimed, specifically, $390, are reasonable. Accordingly, the sum of $12,390

shall be paid from the settlement amount to the Law Offices of John Burris. See Cal. Prob.

Code § 3601(a) (providing court approving compromise of disabled person’s claim “shall

make a further order authorizing and directing that reasonable expenses . . . and attorney’s

fees . . . be paid from the money . . . to be paid or delivered for the benefit of the . . . person

with a disability”).2

3. In accordance with § 3611(b) of the California Probate Code, Mims is directed to

deposit the remaining balance of the sum to be paid by the City of San Leandro,

specifically, $23,610, “in an insured account in a financial institution in this state, . . . subject

to withdrawal only upon the authorization of the court,” see Cal. Prob. Code

§ 3611(b),3

 said account to be in Flanigan’s name, with Mims as custodian. Upon deposit

of the sum of $23,610, Mims shall file with the Court a completed “Receipt and

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Acknowledgment of Order for the Deposit of Money into Blocked Account” (“Receipt”). See

California Judicial Council Form MC-356.

4. A Status Conference with respect to the deposit of the above-referenced

remaining balance is hereby set for April 9, 2010, at 10:30 a.m. No appearance is

necessary, and the Status Conference will stand vacated without further order of the Court,

if a completed Receipt is filed on or before April 2, 2010. If a Receipt has not been filed on

or before April 2, 2010, Sims shall file, no later than April 2, 2010, a Status Conference

Statement, indicating therein the reason(s) why the Receipt has not been filed.

5. All other remaining dates and deadlines, including the November 8, 2010 trial

date, are hereby VACATED.

IT IS SO ORDERED.

Dated: February 26, 2010 

MAXINE M. CHESNEY

United States District Judge

Case 3:09-cv-02052-MMC Document 28 Filed 02/26/10 Page 3 of 3