1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN E. RILEY, Case No.: 16cv405-MMA-LL
12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 S. KERNAN, et al., MOTION FOR APPOINTMENT OF 15 Defendants. COUNSEL [ECF No. 87]; 16
17 (2) DENYING PLAINTIFF’S REQUEST FOR HEARING DATE 18 AND TIME FOR NINETY-DAY 19 EXTENSION OF DISCOVERY [ECF No. 89] 20 21 22 Presently before the Court are two motions from Plaintiff, proceeding pro se and in 23 forma pauperis. ECF Nos. 87, 89. Plaintiff’s first motion, filed nunc pro tunc on 24 January 29, 2021, seeks appointment of counsel. ECF No. 87. Plaintiff’s second motion, 25 filed nunc pro tunc on January 29, 2021, is a request for a hearing date and time for a 26 ninety-day extension of discovery. ECF No. 89. For the reasons set forth below, the Court 27 DENIES without prejudice Plaintiff’s Motion for Appointment of Counsel and DENIES 28 as moot Plaintiff’s Request for a Hearing Date and Time. 1 1. Motion for Appointment of Counsel 2 This is Plaintiff’s third motion for appointment of counsel.1 See ECF Nos. 8, 76. In 3 support of his first request for counsel, Plaintiff stated that he believed Defendants “will 4 claim privileged information that a prisoner can’t have,” and that counsel would “facilitate 5 . . . speedier discovery[] and smoother litigation.” See ECF No. 8 at 1. The Court denied 6 the motion without prejudice. ECF No. 10 at 4. In his second request, Plaintiff sought 7 appointment of counsel because (1) “[t]he U.S. 9th Circuit Court of Appeal[s] [] mandate 8 [at] Docket Entry 60-1 pg. 6 of 6 recommended appointment of counsel for further 9 proceedings” and (2) he “is unable to properly pursue this 42 U.S.C. § 1983 civil suit due 10 to the restrictions that the Defendants have imposed,” such as restricting law library access 11 to “institutional paging and messenger service.” ECF No. 76 at 2. The Court denied the 12 motion without prejudice. ECF No. 77 at 2–5. 13 In the instant Motion, Plaintiff reasserts the claims set forth in his second request for 14 counsel and adds that “pandemic protocols are hampering counsel’s ability to litigate this 15 case.” ECF No. 87 at 3–4. Specifically, Plaintiff states that he “has no way of obtaining 16 any expert(s)” because he is forbidden internet access and so requests appointment of 17 counsel “in the interest of equity.” Id. at 4. The Court interprets Plaintiff’s reassertion of 18 the claims in his second request for counsel as a request for reconsideration of the Court’s 19 order denying appointment of counsel. 20 A district court may reconsider an order under either Federal Rule of Civil 21 Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from 22 judgment).2 See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 23 1262 (9th Cir. 1993). “Reconsideration [pursuant to Rule 59(e)] is appropriate if the district 24 25 1 Plaintiff’s first motion for appointment of counsel was denied on May 29, 2016. 26 ECF No. 10. The Court denied his second motion for appointment of counsel on 27 October 20, 2020. ECF No. 77. 2 The use of the term “Rule” in this order refers to the Federal Rules of Civil Procedure, 28 1 court (1) is presented with newly discovered evidence, (2) committed clear error or the 2 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 3 law.” Id. at 1263. A motion for reconsideration under Rule 60(b) will be granted “only 4 upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered 5 evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; 6 or (6) ‘extraordinary circumstances’ which would justify relief.” Fed. R. Civ. P. 60(b); 7 Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (citation omitted). Under this 8 district’s Local Rules, a party that files a motion for reconsideration of an order must set 9 forth what new or different facts and circumstances are claimed to exist, which did not 10 exist, or were not shown, in the prior motion. CivLR 7.1.i. Reconsideration is an 11 “extraordinary remedy, to be used sparingly in the interests of finality and conservation of 12 judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation 13 omitted). 14 The Constitution provides no right to appointment of counsel in a civil case unless 15 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep't 16 of Soc. Servs. of Durham Cty., N. C., 452 U.S. 18, 25 (1981). Additionally, there is no 17 constitutional right to a court-appointed attorney in cases filed by inmates arising under 18 42 U.S.C. § 1983. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (citation 19 omitted). However, under 28 U.S.C. § 1951(e)(1), courts have the authority to request that 20 an attorney represent indigent persons under “exceptional circumstances.” Agyeman v. 21 Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). A finding of 22 exceptional circumstances demands “at least an evaluation of the likelihood of the 23 plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his 24 claims ‘in light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. 25 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “Neither of these factors is dispositive 26 and both must be viewed together before reaching a decision on request of counsel” under 27 § 1915(e)(1). Wilborn v. Escalderon, 789 F.2d at 1331. 28 / / / 1 Regarding Plaintiff’s reassertion of claims made in his second request for 2 appointment of counsel, the Court finds Plaintiff has not presented any new evidence, 3 extraordinary circumstance, or otherwise shown any reason that would justify a 4 reconsideration of its prior order denying appointment of counsel at this time. Additionally, 5 the limited availability of pro bono legal serv ices in this District has not changed. 6 Regarding Plaintiff’s new claims, the Court finds Plaintiff’s inability to use the 7 internet and obtain experts does not demonstrate exceptional circumstances. Plaintiff’s 8 difficulties do not lie in an inability to articulate his claims in light of the complexity of the 9 legal issues involved, but rather to the general difficulty of litigating pro se. See Arellano 10 v. Sedighi, No. 15-CV-02059-AJB-BGS, 2020 WL 601634, at *1 (S.D. Cal. Feb. 7, 2020). 11 Plaintiff’s difficulty in obtaining experts is shared by all incarcerated litigants proceeding 12 pro se and does not rise to the level of exceptional circumstances. Id. (finding inability to 13 obtain an expert witness is not an exceptional circumstance); Choquette v. Warner, 14 No. 315cv05838BHSJRC, 2016 WL 11622951, at *1 (W.D. Wash. Apr.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN E. RILEY, Case No.: 16cv405-MMA-LL
12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 S. KERNAN, et al., MOTION FOR APPOINTMENT OF 15 Defendants. COUNSEL [ECF No. 87]; 16
17 (2) DENYING PLAINTIFF’S REQUEST FOR HEARING DATE 18 AND TIME FOR NINETY-DAY 19 EXTENSION OF DISCOVERY [ECF No. 89] 20 21 22 Presently before the Court are two motions from Plaintiff, proceeding pro se and in 23 forma pauperis. ECF Nos. 87, 89. Plaintiff’s first motion, filed nunc pro tunc on 24 January 29, 2021, seeks appointment of counsel. ECF No. 87. Plaintiff’s second motion, 25 filed nunc pro tunc on January 29, 2021, is a request for a hearing date and time for a 26 ninety-day extension of discovery. ECF No. 89. For the reasons set forth below, the Court 27 DENIES without prejudice Plaintiff’s Motion for Appointment of Counsel and DENIES 28 as moot Plaintiff’s Request for a Hearing Date and Time. 1 1. Motion for Appointment of Counsel 2 This is Plaintiff’s third motion for appointment of counsel.1 See ECF Nos. 8, 76. In 3 support of his first request for counsel, Plaintiff stated that he believed Defendants “will 4 claim privileged information that a prisoner can’t have,” and that counsel would “facilitate 5 . . . speedier discovery[] and smoother litigation.” See ECF No. 8 at 1. The Court denied 6 the motion without prejudice. ECF No. 10 at 4. In his second request, Plaintiff sought 7 appointment of counsel because (1) “[t]he U.S. 9th Circuit Court of Appeal[s] [] mandate 8 [at] Docket Entry 60-1 pg. 6 of 6 recommended appointment of counsel for further 9 proceedings” and (2) he “is unable to properly pursue this 42 U.S.C. § 1983 civil suit due 10 to the restrictions that the Defendants have imposed,” such as restricting law library access 11 to “institutional paging and messenger service.” ECF No. 76 at 2. The Court denied the 12 motion without prejudice. ECF No. 77 at 2–5. 13 In the instant Motion, Plaintiff reasserts the claims set forth in his second request for 14 counsel and adds that “pandemic protocols are hampering counsel’s ability to litigate this 15 case.” ECF No. 87 at 3–4. Specifically, Plaintiff states that he “has no way of obtaining 16 any expert(s)” because he is forbidden internet access and so requests appointment of 17 counsel “in the interest of equity.” Id. at 4. The Court interprets Plaintiff’s reassertion of 18 the claims in his second request for counsel as a request for reconsideration of the Court’s 19 order denying appointment of counsel. 20 A district court may reconsider an order under either Federal Rule of Civil 21 Procedure 59(e) (motion to alter or amend a judgment) or Rule 60(b) (relief from 22 judgment).2 See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 23 1262 (9th Cir. 1993). “Reconsideration [pursuant to Rule 59(e)] is appropriate if the district 24 25 1 Plaintiff’s first motion for appointment of counsel was denied on May 29, 2016. 26 ECF No. 10. The Court denied his second motion for appointment of counsel on 27 October 20, 2020. ECF No. 77. 2 The use of the term “Rule” in this order refers to the Federal Rules of Civil Procedure, 28 1 court (1) is presented with newly discovered evidence, (2) committed clear error or the 2 initial decision was manifestly unjust, or (3) if there is an intervening change in controlling 3 law.” Id. at 1263. A motion for reconsideration under Rule 60(b) will be granted “only 4 upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly discovered 5 evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; 6 or (6) ‘extraordinary circumstances’ which would justify relief.” Fed. R. Civ. P. 60(b); 7 Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th Cir. 1991) (citation omitted). Under this 8 district’s Local Rules, a party that files a motion for reconsideration of an order must set 9 forth what new or different facts and circumstances are claimed to exist, which did not 10 exist, or were not shown, in the prior motion. CivLR 7.1.i. Reconsideration is an 11 “extraordinary remedy, to be used sparingly in the interests of finality and conservation of 12 judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003) (citation 13 omitted). 14 The Constitution provides no right to appointment of counsel in a civil case unless 15 an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep't 16 of Soc. Servs. of Durham Cty., N. C., 452 U.S. 18, 25 (1981). Additionally, there is no 17 constitutional right to a court-appointed attorney in cases filed by inmates arising under 18 42 U.S.C. § 1983. Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981) (citation 19 omitted). However, under 28 U.S.C. § 1951(e)(1), courts have the authority to request that 20 an attorney represent indigent persons under “exceptional circumstances.” Agyeman v. 21 Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (citation omitted). A finding of 22 exceptional circumstances demands “at least an evaluation of the likelihood of the 23 plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his 24 claims ‘in light of the complexity of the legal issues involved.’” Id. (quoting Wilborn v. 25 Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)). “Neither of these factors is dispositive 26 and both must be viewed together before reaching a decision on request of counsel” under 27 § 1915(e)(1). Wilborn v. Escalderon, 789 F.2d at 1331. 28 / / / 1 Regarding Plaintiff’s reassertion of claims made in his second request for 2 appointment of counsel, the Court finds Plaintiff has not presented any new evidence, 3 extraordinary circumstance, or otherwise shown any reason that would justify a 4 reconsideration of its prior order denying appointment of counsel at this time. Additionally, 5 the limited availability of pro bono legal serv ices in this District has not changed. 6 Regarding Plaintiff’s new claims, the Court finds Plaintiff’s inability to use the 7 internet and obtain experts does not demonstrate exceptional circumstances. Plaintiff’s 8 difficulties do not lie in an inability to articulate his claims in light of the complexity of the 9 legal issues involved, but rather to the general difficulty of litigating pro se. See Arellano 10 v. Sedighi, No. 15-CV-02059-AJB-BGS, 2020 WL 601634, at *1 (S.D. Cal. Feb. 7, 2020). 11 Plaintiff’s difficulty in obtaining experts is shared by all incarcerated litigants proceeding 12 pro se and does not rise to the level of exceptional circumstances. Id. (finding inability to 13 obtain an expert witness is not an exceptional circumstance); Choquette v. Warner, 14 No. 315cv05838BHSJRC, 2016 WL 11622951, at *1 (W.D. Wash. Apr. 29, 2016) (finding 15 desire for assistance with experts and discovery is not an exceptional circumstance). 16 Furthermore, the Court notes that litigants proceeding in forma pauperis must hire 17 their own experts. Arellano v. Sedighi, 2020 WL 601634, at *1 (citation omitted). The 18 statute allowing impoverished litigants to proceed in forma pauperis “does not grant the 19 Court the authority to appoint expert witnesses on behalf of a party.” Id. (citing 20 28 U.S.C. § 1915); see also Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (“The 21 magistrate judge correctly ruled that 28 U.S.C. § 1915, the in forma pauperis statute, does 22 not waive payment of fees or expenses for witnesses.” (citation omitted)). If it becomes 23 necessary, the Court has the ability to appoint a neutral expert under Federal Rule of 24 Evidence 706. Arellano v. Sedighi, 2020 WL 601634, at *1. 25 The information before the Court does not indicate an exceptional circumstance to 26 warrant appointment of counsel. The Court has reviewed the documents filed by Plaintiff 27 in this case and finds he has been able to sufficiently articulate the facts and circumstances 28 relevant to his claims. See Dunsmore v. Paramo, No. 13cv1193-GPC-PCL, 1 2013 WL 5738774, at *2 (S.D. Cal. Oct. 22, 2013) (denying appointment of counsel to a 2 pro se litigant who had a “good grasp of the basis of his claims, and [was] able to articulate 3 them in light of the relative complexity of the legal issues involved”). Moreover, although 4 fact discovery has recently ended, it is not possible to determine Plaintiff’s likelihood of 5 success at this stage of the litigation. See Garcia v. Smith, No. 10cv1187-AJB-RBB, 6 2012 WL 2499003, at *3 (S.D. Cal. June 27, 2012) (denying motion for appointment of 7 counsel even though plaintiff had survived a motion to dismiss because it was too early to 8 determine whether any of plaintiff’s claims would survive a motion for summary 9 judgment). Accordingly, the Court DENIES without prejudice Plaintiff’s motion for 10 appointment of counsel at this time. 11 2. Request for Hearing Date and Time for Ninety-Day Extension of Discovery 12 Plaintiff requests a hearing date and time for a ninety-day extension of discovery; 13 the request does not include reasons for the extension. ECF No. 89. The dates and times 14 set forth in the Scheduling Order will only be modified for good cause. ECF No. 68 at 4. 15 However, a request for an extension of time does not require a motion hearing. The relevant 16 section of the undersigned magistrate judge’s Civil Chambers Rules states the following: 17 Requests to Amend the Schedule. The dates and times set in the Scheduling Order will not be modified except for good cause shown and with the Judge’s 18 consent. Fed. R. Civ. P. 16(b)(4). Counsel are reminded of their duty of 19 diligence and that they must “take all steps necessary to bring an action to readiness for trial.” Civil Local Rule 16.1(b). 20
21 Before requesting an extension of any dates, the attorneys must “meet and confer” and the request should then be made by filing a joint motion. The joint 22 motion must establish good cause for the request and shall include a 23 declaration from counsel of record detailing the steps taken to comply with the dates and deadlines set in the order, the specific reasons why the deadlines 24 cannot be met, and any prior requested or approved modifications to the order. 25 A party seeking a modification may move ex parte if the other parties will not join in a motion to amend the schedule. In an ex parte motion, the declaration 26 must address the steps counsel took to obtain a stipulation, as well as the 27 subjects required for the joint motion. When the motion is made after time has 28 expired, [Federal Rule of Civil Procedure] 6(b)(1)(B) requires the parties to 5 address excusable neglect. 3 || Judge Lopez’s Civil Chambers Rules, Section III.C.? 4 Because a hearing is not required for a motion to amend the Scheduling Order, the 5 || Court DENIES as moot Plaintiff's request for a hearing date and time to extend discovery. 6 || If Plaintiff unable to promptly meet and confer with defense counsel by phone to request 7 ||an extension, he may submit an ex parte application to extend discovery. 8 IT IS SO ORDERED. 9 || Dated: February 11, 2021 KO 10 QF 11 Honorable Linda Lopez D United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 > Any reference to “attorneys” or “counsel” in the Civil Chambers Rules also applies to self-represented litigants.