1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JOSE NOGALES, Case No.: 3:19-cv-02485-LAB-WVG CDCR #G-52536, 11 ORDER DENYING PLAINTIFF’S Plaintiff, 12 MOTION FOR RECONSIDERATION vs. 13 [ECF No. 13] XAVIER BECERRA, in his official 14 capacity as Attorney General, 15 Defendant. 16 17 18 Plaintiff Jose Nogales, a prisoner currently incarcerated at Centinela State Prison, 19 proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983, has filed a 20 motion seeking partial reconsideration of this Court’s April 15, 2020 Order. See ECF No. 21 13. 22 In its April 15, 2020 Order, the Court granted Plaintiff leave to proceed in forma 23 pauperis, denied his request for appointment of counsel, and directed the U.S. Marshal to 24 effect service of his Complaint. See ECF No. 9. While the Court found Plaintiff had 25 pleaded claims sufficient to withstand the sua sponte screening required by 28 U.S.C. 26 § 1915(e)(2) and § 1915A, it further found he failed to show that exceptional 27 circumstances in his case justified appointment of counsel pursuant to 28 U.S.C. 28 § 1915(e)(1). See id. at 3‒6. 1 Plaintiff now asks the Court to reconsider that conclusion on grounds that “it is 2 actually very clear that [he] is likely to succeed on the merits,” and he “might be 3 prejudiced” in his pursuit of his claims without “professional assistance.” See ECF No. 4 13-1 at 2. Because Plaintiff fails to identify any intervening change in controlling law or 5 show that the Court committed clear error in denying his original request however, his 6 Motion for Reconsideration [ECF No. 13] must be DENIED. 7 I. Motion for Reconsideration 8 A. Standard of Review 9 The Federal Rules of Civil Procedure do not expressly provide for motions for 10 reconsideration. But where reconsideration of a non-final order is sought, the court has 11 “inherent jurisdiction to modify, alter or revoke it.” United States v. Martin, 226 F.3d 12 1042, 1048-49 (9th Cir. 2000). “The authority of district courts to reconsider their own 13 orders before they become final, absent some applicable rule or statute to the contrary, 14 allows them to correct not only simple mistakes, but also decisions based on shifting 15 precedent, rather than waiting for the time-consuming, costly process of appeal.” Id. at 16 1049. Thus, S.D. Cal. Civil Local Rule 7.1(i) permits motions for reconsideration 17 “[w]henever any motion or any application or petition for any order or other relief has 18 been made to any judge ... has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i). 19 However, the party seeking reconsideration must show “what new or different facts and 20 circumstances are claimed to exist which did not exist, or were not shown, upon such 21 prior application.” Id. In fact, this Court’s Standing Orders expressly disfavor requests for 22 reconsideration and provide for their summary denial in the absence of (1) new evidence; 23 (2) a change in controlling law; or (3) clear error. See S.D. Cal. Chief Judge Larry Alan 24 Burns, “Standing Order in Civil Cases” § 3(e) (available at http://web.casd.circ9.dcn/ 25 judges/chambers-rules.aspx) (last visited May 27, 2020). 26 A motion for reconsideration filed pursuant to a Local Rule may also be construed 27 as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. 28 Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 1 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that “a post- 2 judgment motion will be considered a Rule 59(e) motion where it involves 3 ‘reconsideration of matters properly encompassed in a decision on the merits.’” 489 U.S. 4 at 174 (quoting White v. New Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 5 (1982)). A district court may grant a Rule 59(e) motion if it “‘is presented with newly 6 discovered evidence, committed clear error, or if there is an intervening change in the 7 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citing McDowell 8 v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. 9 Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 10 B. Discussion 11 Plaintiff cites three bases for his current request: (1) he contends his equal 12 protection claims are properly raised in a civil rights action pursuant to 42 U.S.C. § 1983; 13 see ECF No. 13‒1 at 3‒9; (2) he is likely to prevail on the merits of those claims; id. at 9‒ 14 10; and (3) he is “not a legal professional” and “may very well be prejudiced” in pursuing 15 his claim without the assistance of counsel. Id. at 10‒12. 16 None of these reasons warrant reconsideration of the Court’s April 15, 2020 Order 17 denying appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1), however. 18 Specifically, the Court has already found Plaintiff’s equal protection claims sufficient to 19 withstand the initial screening required by 28 U.S.C. § 1915(e)(2) and § 1915A, see ECF 20 No. 9 at 9, directed the U.S. Marshal to effect service upon Defendant Becerra so that he 21 must respond, id., at 10‒77, and determined that while it is simply “too soon to tell 22 whether he is likely to succeed on the merits,” nothing in Plaintiff’s Complaint “suggests 23 he is incapable of articulating the factual basis for his … claims.” Id. at 4‒5. Plaintiff 24 points to no new evidence not previously considered, no clear error in the Court’s 25 analysis, and no change in the controlling law governing the appointment of counsel in 26 civil cases. See Wood, 759 F.3d at 1121. 27 In fact, Plaintiff’s claims of being hampered by his lack of legal training are belied 28 by the arguments he makes in his current motion, which demonstrates a clear and cogent 1 understanding of this Court’s April 15, 2010 Order and the legal distinctions between 2 civil rights and habeas jurisdiction, discusses those differences in the context of his case, 3 and includes citations to relevant case law. See ECF No. 13‒1 at 3‒10; Weygandt v. Look, 4 718 F.2d 952, 954 (9th Cir. 1983) (when determining whether “exceptional 5 circumstances” exist justifying the appointment of counsel pursuant to 28 U.S.C. 6 § 1915(e)(1), a court must consider “the likelihood of success on the merits as well as the 7 ability of the petitioner to articulate his claims pro se in light of the legal issues 8 involved.”); see also Palmer v.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 JOSE NOGALES, Case No.: 3:19-cv-02485-LAB-WVG CDCR #G-52536, 11 ORDER DENYING PLAINTIFF’S Plaintiff, 12 MOTION FOR RECONSIDERATION vs. 13 [ECF No. 13] XAVIER BECERRA, in his official 14 capacity as Attorney General, 15 Defendant. 16 17 18 Plaintiff Jose Nogales, a prisoner currently incarcerated at Centinela State Prison, 19 proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983, has filed a 20 motion seeking partial reconsideration of this Court’s April 15, 2020 Order. See ECF No. 21 13. 22 In its April 15, 2020 Order, the Court granted Plaintiff leave to proceed in forma 23 pauperis, denied his request for appointment of counsel, and directed the U.S. Marshal to 24 effect service of his Complaint. See ECF No. 9. While the Court found Plaintiff had 25 pleaded claims sufficient to withstand the sua sponte screening required by 28 U.S.C. 26 § 1915(e)(2) and § 1915A, it further found he failed to show that exceptional 27 circumstances in his case justified appointment of counsel pursuant to 28 U.S.C. 28 § 1915(e)(1). See id. at 3‒6. 1 Plaintiff now asks the Court to reconsider that conclusion on grounds that “it is 2 actually very clear that [he] is likely to succeed on the merits,” and he “might be 3 prejudiced” in his pursuit of his claims without “professional assistance.” See ECF No. 4 13-1 at 2. Because Plaintiff fails to identify any intervening change in controlling law or 5 show that the Court committed clear error in denying his original request however, his 6 Motion for Reconsideration [ECF No. 13] must be DENIED. 7 I. Motion for Reconsideration 8 A. Standard of Review 9 The Federal Rules of Civil Procedure do not expressly provide for motions for 10 reconsideration. But where reconsideration of a non-final order is sought, the court has 11 “inherent jurisdiction to modify, alter or revoke it.” United States v. Martin, 226 F.3d 12 1042, 1048-49 (9th Cir. 2000). “The authority of district courts to reconsider their own 13 orders before they become final, absent some applicable rule or statute to the contrary, 14 allows them to correct not only simple mistakes, but also decisions based on shifting 15 precedent, rather than waiting for the time-consuming, costly process of appeal.” Id. at 16 1049. Thus, S.D. Cal. Civil Local Rule 7.1(i) permits motions for reconsideration 17 “[w]henever any motion or any application or petition for any order or other relief has 18 been made to any judge ... has been refused in whole or in part.” S.D. Cal. CivLR 7.1(i). 19 However, the party seeking reconsideration must show “what new or different facts and 20 circumstances are claimed to exist which did not exist, or were not shown, upon such 21 prior application.” Id. In fact, this Court’s Standing Orders expressly disfavor requests for 22 reconsideration and provide for their summary denial in the absence of (1) new evidence; 23 (2) a change in controlling law; or (3) clear error. See S.D. Cal. Chief Judge Larry Alan 24 Burns, “Standing Order in Civil Cases” § 3(e) (available at http://web.casd.circ9.dcn/ 25 judges/chambers-rules.aspx) (last visited May 27, 2020). 26 A motion for reconsideration filed pursuant to a Local Rule may also be construed 27 as a motion to alter or amend judgment under Rule 59(e) or Rule 60(b). See Osterneck v. 28 Ernst & Whinney, 489 U.S. 169, 174 (1989); In re Arrowhead Estates Development Co., 1 42 F.3d 1306, 1311 (9th Cir. 1994). In Osterneck, the Supreme Court stated that “a post- 2 judgment motion will be considered a Rule 59(e) motion where it involves 3 ‘reconsideration of matters properly encompassed in a decision on the merits.’” 489 U.S. 4 at 174 (quoting White v. New Hampshire Dep’t of Employ’t Sec., 455 U.S. 445, 451 5 (1982)). A district court may grant a Rule 59(e) motion if it “‘is presented with newly 6 discovered evidence, committed clear error, or if there is an intervening change in the 7 controlling law.’” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014) (citing McDowell 8 v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (en banc) (quoting 389 Orange St. 9 Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999)). 10 B. Discussion 11 Plaintiff cites three bases for his current request: (1) he contends his equal 12 protection claims are properly raised in a civil rights action pursuant to 42 U.S.C. § 1983; 13 see ECF No. 13‒1 at 3‒9; (2) he is likely to prevail on the merits of those claims; id. at 9‒ 14 10; and (3) he is “not a legal professional” and “may very well be prejudiced” in pursuing 15 his claim without the assistance of counsel. Id. at 10‒12. 16 None of these reasons warrant reconsideration of the Court’s April 15, 2020 Order 17 denying appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1), however. 18 Specifically, the Court has already found Plaintiff’s equal protection claims sufficient to 19 withstand the initial screening required by 28 U.S.C. § 1915(e)(2) and § 1915A, see ECF 20 No. 9 at 9, directed the U.S. Marshal to effect service upon Defendant Becerra so that he 21 must respond, id., at 10‒77, and determined that while it is simply “too soon to tell 22 whether he is likely to succeed on the merits,” nothing in Plaintiff’s Complaint “suggests 23 he is incapable of articulating the factual basis for his … claims.” Id. at 4‒5. Plaintiff 24 points to no new evidence not previously considered, no clear error in the Court’s 25 analysis, and no change in the controlling law governing the appointment of counsel in 26 civil cases. See Wood, 759 F.3d at 1121. 27 In fact, Plaintiff’s claims of being hampered by his lack of legal training are belied 28 by the arguments he makes in his current motion, which demonstrates a clear and cogent 1 understanding of this Court’s April 15, 2010 Order and the legal distinctions between 2 civil rights and habeas jurisdiction, discusses those differences in the context of his case, 3 and includes citations to relevant case law. See ECF No. 13‒1 at 3‒10; Weygandt v. Look, 4 718 F.2d 952, 954 (9th Cir. 1983) (when determining whether “exceptional 5 circumstances” exist justifying the appointment of counsel pursuant to 28 U.S.C. 6 § 1915(e)(1), a court must consider “the likelihood of success on the merits as well as the 7 ability of the petitioner to articulate his claims pro se in light of the legal issues 8 involved.”); see also Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (finding no 9 exceptional circumstances warranting counsel where pro se prisoner did a “good job 10 putting on his case,” was “well-organized, made clear points, and presented [] evidence 11 effectively.”). 12 “Although Rule 59(e) permits a district court to reconsider and amend a previous 13 order, the rule offers an extraordinary remedy, to be used sparingly in the interests of 14 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 15 229 F.3d 877, 890 (9th Cir. 2000) (internal quotation marks omitted). Motions for 16 reconsideration, like the one Plaintiff has filed in this case, do not offer parties a “second 17 bite at the apple,” Weeks v. Bayer, 246 F.3d 1231, 1236-37 (9th Cir. 2001), and may not 18 “be used to ask the Court to rethink what it has already thought.” United States v. 19 Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998); see also Ramser v. Laielli, No. 20 3:15-CV-2018-CAB-DHB, 2017 WL 3524879, at *1 (S.D. Cal. Aug. 15, 2017) (citing 21 Keweenaw Bay Indian Cmty. v. State of Mich., 152 F.R.D. 562, 563 (W.D. Mich. 1992) 22 (“[W]here the movant is attempting to obtain a complete reversal of the court’s judgment 23 by offering essentially the same arguments presented on the original motion, the proper 24 vehicle for relief is an appeal.”). 25 Plaintiff disagrees with the Court’s assessment as to whether his case presents the 26 “exceptional circumstances” required to justify appointment of counsel in an indigent 27 litigant’s civil case. See Ageyman v. Corrs. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 28 2004). But ultimately, as the party seeking reconsideration, he must do “more than 1 || disagree[] with the Court’s decision,” or offer a “recapitulation of the cases and 2 arguments considered by the court before rendering its original decision.” United States 3 Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). 4 ||II. Conclusion and Order 5 Accordingly, Plaintiff's Motion for Reconsideration is DENIED (ECF No. 13). 6 IT IS SO ORDERED. 7 8 Dated: June 2, 2020 (nu Af: (Boy nV 9 Hon. Larry Alan Burns 10 Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5