2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMADOU DIAKITE, Case No.: 19cv1341-DMS(MSB)
12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 v. FOR RECONSIDERATION OF ORDER DENYING APPOINTMENT OF COUNSEL 14 M. POLADIAN, et al., [ECF NO. 61] 15 Defendants. 16 17 On January 11, 2021, Plaintiff, a state prisoner proceeding pro se, signed a 18 document entitled “Reconsideration for Request for Appointment of Counsel,” which 19 the Court accepted on discrepancy on January 19, 2021. (See ECF Nos. 60 & 61.) 20 Plaintiff asks the Court to reconsider its prior order denying Plaintiff’s motion for 21 appointment of counsel. (See ECF No. 61.) In support, Plaintiff argues that he cannot 22 afford counsel and is no longer receiving assistance from a jailhouse lawyer, this case 23 has merit and is “very complex” because it involves several legal claims and Defendants, 24 and may require expert testimony. (Id. at 1-3, 7, 9.) Plaintiff also contends that the 25 evidence in this case will consist of conflicting testimony, which “will require skill in the 26 presentation of evidence and in cross-examination.” (Id. at 2; see also id. at 8.) Plaintiff 27 further asserts that he has limited access to the law library and legal materials because 2 Additionally, Plaintiff states that certain witnesses have been released from CDCR, while 3 others were transferred to different correctional institutions, and he cannot locate 4 witnesses. (Id. at 2; see also id. at 7-8.) Finally, Plaintiff maintains that he has “very 5 limited college education,” and limited knowledge of the law and civil procedure. (Id. at 6 2, 4.) 7 I. LEGAL STANDARD 8 The Federal Rules of Civil Procedure do not expressly provide for motions for 9 reconsideration.” Soares v. Paramo, Case No.: 3:13-cv-02971-BTM-RBB, 2016 WL 10 3997594, at *1 (S.D. Cal. July 25, 2016). Courts permit motions for reconsideration to be 11 brought under Federal Rule of Civil Procedure 59(e) or 60(b). Victorino v. FCA US LLC, 12 Case No.: 16-cv-01617-GPC-JLB, 2017 WL 4557193, at *1 (S.D. Cal. Oct. 12, 2017). A 13 motion for reconsideration is treated as a motion to alter or amend judgment under 14 Rule 59(e) if it is filed after the entry of judgment; otherwise, it is treated as a Rule 60(b) 15 motion for relief from a judgment or order. See Am. Ironworks & Erectors, Inc. v. N. Am. 16 Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001); Hupp v. San Diego Cnty., Civil No. 17 12cv0492 GPC (RBB), 2014 WL 2865729, at *1 (S.D. Cal. June 24, 2014). Under Rule 60, 18 a party can obtain relief from a court order for the following reasons: (1) mistake, 19 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by 20 reasonable diligence could not have been discovered in time to move for a new trial 21 under Rule 59(b); (3) fraud, misrepresentation, or misconduct by an opposing party; 22 (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason 23 that justifies relief. Fed. R. Civ. P. 60(b). 24 Further, Civil Local Rule 7.1(i)(1) provides that a party may apply for 25 reconsideration “[w]henever any motion or any application or petition for any order or 26 other relief has been made to any judge and has been refused in whole or in part . . . .” 27 S.D. Cal. Civ.L.R. 7.1(i)(1). The party seeking reconsideration must show “what new or 2 within “twenty-eight (28) days after the entry of the ruling, order or judgment sought to 3 be reconsidered.” S.D. Cal. Civ.L.R. 7.1(i)(2). Whether to grant or deny a motion for 4 reconsideration is within the sound discretion of the court. Navajo Nation v. 5 Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 6 2003). 7 The Constitution provides no right to appointment of counsel in a civil case unless 8 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 9 Dep’t Soc. Servs., 452 U.S. 18, 25 (1981); see also Palmer v. Valdez, 560 F.3d 965, 970 10 (9th Cir. 2009) (finding no abuse of discretion in denying appointment of counsel in 11 Section 1983 action); Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 12 1994) (“[T]here is no absolute right to counsel in civil proceedings.”). However, under 13 28 U.S.C. § 1915(e)(1), courts have the authority to “request” that an attorney represent 14 indigent civil litigants upon a showing of “exceptional circumstances.” Agyeman v. Corr. 15 Corp. Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). When assessing 16 whether exceptional circumstances exist, courts must evaluate “the likelihood of the 17 plaintiff’s success on the merits” and “the plaintiff’s ability to articulate his claims ‘in 18 light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 19 789 F.2d 1328, 1331 (9th Cir. 1986)). Both factors must be reviewed before deciding 20 whether to appoint counsel, and neither factor is individually dispositive. Wilborn, 789 21 F.2d at 1331. 22 II. DISCUSSION 23 The Court notes that on April 21, 2020, it issued an order denying Plaintiff’s 24 motion to appoint counsel. (See ECF No. 20.) Plaintiff signed the instant motion on 25 January 11, 2021, and the motion was filed on January 19, 2021, more than eight 26 months after the issuance of the order Plaintiff seeks to reconsider. (See ECF No. 61 at 27 10; ECF No. 60; see also ECF No. 20.) As such, the motion for reconsideration is 2 judgment sought to be reconsidered.”). 3 Further, in his initial motion, Plaintiff argued that the appointment of counsel was 4 warranted because he lacked legal training, had limited access to legal resources, was 5 litigating with the help of a “jailhouse lawyer,” the case was “very serious” and had 6 merit, “conflicting evidence implicating the need for cross-examination w[ould] be 7 important to the case,” and Plaintiff would not be able to adequately investigate and 8 litigate the case due to his incarceration. (See ECF No. 14 at 4, 8.) In the instant motion, 9 Plaintiff reiterates many of his past arguments, and his cited reasons for the 10 appointment of counsel parallel those asserted in his prior motion. (See id.) Having 11 reviewed Plaintiff’s additional arguments, the Court finds that they do not represent a 12 basis for reversing the Court’s prior decision. Since the Court’s denial of Plaintiff’s initial 13 request to appoint counsel, Plaintiff has drafted and submitted numerous documents 14 without the assistance of legal counsel. In addition to the instant filing, Plaintiff has 15 submitted two motions to continue the deadline to serve written discovery [ECF Nos. 16 22, 26], three motions to continue the deadline to complete service of subpoenas [ECF 17 Nos. 30, 45, 58], an objection to Defendants’ ex parte application to continue Case 18 Management Conference [ECF No. 35], an ex parte application to continue the deadline 19 for expert designation and rebuttal expert designation [ECF No. 37], and a motion to 20 continue the deadline to serve interrogatories [ECF No. 43].
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2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AMADOU DIAKITE, Case No.: 19cv1341-DMS(MSB)
12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION 13 v. FOR RECONSIDERATION OF ORDER DENYING APPOINTMENT OF COUNSEL 14 M. POLADIAN, et al., [ECF NO. 61] 15 Defendants. 16 17 On January 11, 2021, Plaintiff, a state prisoner proceeding pro se, signed a 18 document entitled “Reconsideration for Request for Appointment of Counsel,” which 19 the Court accepted on discrepancy on January 19, 2021. (See ECF Nos. 60 & 61.) 20 Plaintiff asks the Court to reconsider its prior order denying Plaintiff’s motion for 21 appointment of counsel. (See ECF No. 61.) In support, Plaintiff argues that he cannot 22 afford counsel and is no longer receiving assistance from a jailhouse lawyer, this case 23 has merit and is “very complex” because it involves several legal claims and Defendants, 24 and may require expert testimony. (Id. at 1-3, 7, 9.) Plaintiff also contends that the 25 evidence in this case will consist of conflicting testimony, which “will require skill in the 26 presentation of evidence and in cross-examination.” (Id. at 2; see also id. at 8.) Plaintiff 27 further asserts that he has limited access to the law library and legal materials because 2 Additionally, Plaintiff states that certain witnesses have been released from CDCR, while 3 others were transferred to different correctional institutions, and he cannot locate 4 witnesses. (Id. at 2; see also id. at 7-8.) Finally, Plaintiff maintains that he has “very 5 limited college education,” and limited knowledge of the law and civil procedure. (Id. at 6 2, 4.) 7 I. LEGAL STANDARD 8 The Federal Rules of Civil Procedure do not expressly provide for motions for 9 reconsideration.” Soares v. Paramo, Case No.: 3:13-cv-02971-BTM-RBB, 2016 WL 10 3997594, at *1 (S.D. Cal. July 25, 2016). Courts permit motions for reconsideration to be 11 brought under Federal Rule of Civil Procedure 59(e) or 60(b). Victorino v. FCA US LLC, 12 Case No.: 16-cv-01617-GPC-JLB, 2017 WL 4557193, at *1 (S.D. Cal. Oct. 12, 2017). A 13 motion for reconsideration is treated as a motion to alter or amend judgment under 14 Rule 59(e) if it is filed after the entry of judgment; otherwise, it is treated as a Rule 60(b) 15 motion for relief from a judgment or order. See Am. Ironworks & Erectors, Inc. v. N. Am. 16 Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001); Hupp v. San Diego Cnty., Civil No. 17 12cv0492 GPC (RBB), 2014 WL 2865729, at *1 (S.D. Cal. June 24, 2014). Under Rule 60, 18 a party can obtain relief from a court order for the following reasons: (1) mistake, 19 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by 20 reasonable diligence could not have been discovered in time to move for a new trial 21 under Rule 59(b); (3) fraud, misrepresentation, or misconduct by an opposing party; 22 (4) the judgment is void; (5) the judgment has been satisfied; or (6) any other reason 23 that justifies relief. Fed. R. Civ. P. 60(b). 24 Further, Civil Local Rule 7.1(i)(1) provides that a party may apply for 25 reconsideration “[w]henever any motion or any application or petition for any order or 26 other relief has been made to any judge and has been refused in whole or in part . . . .” 27 S.D. Cal. Civ.L.R. 7.1(i)(1). The party seeking reconsideration must show “what new or 2 within “twenty-eight (28) days after the entry of the ruling, order or judgment sought to 3 be reconsidered.” S.D. Cal. Civ.L.R. 7.1(i)(2). Whether to grant or deny a motion for 4 reconsideration is within the sound discretion of the court. Navajo Nation v. 5 Confederated Tribes & Bands of the Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 6 2003). 7 The Constitution provides no right to appointment of counsel in a civil case unless 8 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. 9 Dep’t Soc. Servs., 452 U.S. 18, 25 (1981); see also Palmer v. Valdez, 560 F.3d 965, 970 10 (9th Cir. 2009) (finding no abuse of discretion in denying appointment of counsel in 11 Section 1983 action); Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 12 1994) (“[T]here is no absolute right to counsel in civil proceedings.”). However, under 13 28 U.S.C. § 1915(e)(1), courts have the authority to “request” that an attorney represent 14 indigent civil litigants upon a showing of “exceptional circumstances.” Agyeman v. Corr. 15 Corp. Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). When assessing 16 whether exceptional circumstances exist, courts must evaluate “the likelihood of the 17 plaintiff’s success on the merits” and “the plaintiff’s ability to articulate his claims ‘in 18 light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. Escalderon, 19 789 F.2d 1328, 1331 (9th Cir. 1986)). Both factors must be reviewed before deciding 20 whether to appoint counsel, and neither factor is individually dispositive. Wilborn, 789 21 F.2d at 1331. 22 II. DISCUSSION 23 The Court notes that on April 21, 2020, it issued an order denying Plaintiff’s 24 motion to appoint counsel. (See ECF No. 20.) Plaintiff signed the instant motion on 25 January 11, 2021, and the motion was filed on January 19, 2021, more than eight 26 months after the issuance of the order Plaintiff seeks to reconsider. (See ECF No. 61 at 27 10; ECF No. 60; see also ECF No. 20.) As such, the motion for reconsideration is 2 judgment sought to be reconsidered.”). 3 Further, in his initial motion, Plaintiff argued that the appointment of counsel was 4 warranted because he lacked legal training, had limited access to legal resources, was 5 litigating with the help of a “jailhouse lawyer,” the case was “very serious” and had 6 merit, “conflicting evidence implicating the need for cross-examination w[ould] be 7 important to the case,” and Plaintiff would not be able to adequately investigate and 8 litigate the case due to his incarceration. (See ECF No. 14 at 4, 8.) In the instant motion, 9 Plaintiff reiterates many of his past arguments, and his cited reasons for the 10 appointment of counsel parallel those asserted in his prior motion. (See id.) Having 11 reviewed Plaintiff’s additional arguments, the Court finds that they do not represent a 12 basis for reversing the Court’s prior decision. Since the Court’s denial of Plaintiff’s initial 13 request to appoint counsel, Plaintiff has drafted and submitted numerous documents 14 without the assistance of legal counsel. In addition to the instant filing, Plaintiff has 15 submitted two motions to continue the deadline to serve written discovery [ECF Nos. 16 22, 26], three motions to continue the deadline to complete service of subpoenas [ECF 17 Nos. 30, 45, 58], an objection to Defendants’ ex parte application to continue Case 18 Management Conference [ECF No. 35], an ex parte application to continue the deadline 19 for expert designation and rebuttal expert designation [ECF No. 37], and a motion to 20 continue the deadline to serve interrogatories [ECF No. 43]. 21 The enumerated filings and Plaintiff’s participation in the case to date 22 demonstrate that he continues to have a sufficient grasp of the issues, is able to 23 articulate the factual and legal basis of his claims, and participate in the discovery 24 process. See Myers v. Basto, Case No.: 18cv2239-DMS(BLM), 2019 WL 265134, at *1-2 25 (S.D. Cal. Jan. 18, 2019) (finding that plaintiff failed to allege the requisite “exceptional 26 circumstances” warranting the appointment of counsel, where the plaintiff argued that 27 he was unable to afford counsel, had “very limited” access to law library, and that 1 || Blahnik, Case No.: 14cv875-LAB-BGS, 2016 WL 4269561, at *3 (S.D. Cal. Aug. 15, 2 2016) (finding that appointment of counsel was not warranted where, inter alia, 3 || plaintiff's “limited access to the law library ha[d] not prevented him from filing a well- 4 || articulated complaint and other motions with the Court.”). Additionally, although 5 || Plaintiff alleges that he could not adequately litigate this case because he was placed in 6 || administrative segregation, and because of the restrictions stemming from the Covid-19 7 || public health crisis, the Court has extended deadlines in this case numerous times to 8 || account for the above circumstances. 9 Ill. CONCLUSION 10 For the above stated reasons, the Court finds the appointment of counsel is not 11 || warranted. Accordingly, the Court DENIES without prejudice Plaintiff’s motion for 12 || reconsideration of the order denying appointment of counsel. 13 IT IS SO ORDERED. 14 Dated: January 28, 2021 TZ. 15 4 L <—{—\. 1 Honorable Michael S. Berg United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28