1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SALMEN, CDCR #BK-5881, Case No.: 3:20-cv-02088-GPC-KSC
12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION OF COURT’S DECEMBER 18, 2020 ORDER 14 CALIFORNIA DEP’T OF DENYING PLAINTIFF’S MOTION CORRECTIONS AND 15 TO APPOINT COUNSEL REHABILITATION; S. ROBERTS; M.
16 GLYNN; J. HODGES; A. KENDALL; [Doc. No. 14] DR. CHAU; H. FRANKLIN; S. 17 ANDERSON; A. SHITTU; S. GATES, 18 Defendants. 19
20 Plaintiff Justin Salmen (“plaintiff”) is proceeding pro se and in forma pauperis in 21 this civil rights action pursuant to 42 U.S.C. § 1983, alleging defendants violated his rights 22 under the United States Constitution. See Doc. No. 7. Before the Court is a document 23 titled “Motion for Appointment of Counsel” (the “Motion”) in which plaintiff reiterates his 24 request to have counsel appointed and objects to the Court’s December 14, 2020 Notice of 25 Document Discrepancy. Doc. No. 14; see also Doc. No. 10. The Court will construe 26 plaintiff’s Motion as a motion for reconsideration of the Court’s December 18, 2020 Order 27 denying his motion to have counsel appointed (the “December 18 Order”). Doc. No. 12. 28 For the following reasons, plaintiff’s Motion is DENIED. 1 I. BACKGROUND 2 On October 22, 2020, plaintiff filed this action, asserting defendants had violated his 3 constitutional rights to due process and freedom from cruel and unusual punishment. Doc. 4 No. 1 at 6-8. Plaintiff moved concurrently to have counsel appointed to represent him in 5 this matter. Doc. No. 3. On November 2, 2020, the District Court denied plaintiff’s first 6 motion for the appointment of counsel, finding there were “no ‘exceptional 7 circumstances’” to justify appointing counsel at that time. Doc. No. 6 at 5. 8 On December 10, 2020, plaintiff renewed his request to have counsel appointed. 9 Doc. No. 11. Plaintiff’s renewed motion lacked supporting documentation, including a 10 memorandum of points and authorities as required by the Local Rules, but the Court 11 nevertheless accepted it for filing and it was deemed filed on the date it was received in the 12 Clerk’s office (the “Discrepancy Notice”). See Doc. No. 10. On December 18, 2020, the 13 Court issued an order denying plaintiff’s motion. Doc. No. 12. As the District Court had 14 done earlier, the Court found that plaintiff had not met his burden to establish exceptional 15 circumstances warranting the appointment of counsel to represent plaintiff in this matter at 16 taxpayer expense. Id. at 5. 17 On December 28, 2020, plaintiff filed the Motion presently before the Court. Doc. 18 No. 14. Plaintiff requests that the Court appoint counsel to represent him or, alternatively, 19 “close the case.” Id. at 3. 20 II. DISCUSSION 21 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 22 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 23 F.3d 877, 890 (9th Cir. 2000) (citation omitted). “‘[A] motion for reconsideration should 24 not be granted, absent highly unusual circumstances, unless the court is presented with 25 newly discovered evidence, committed clear error, or if there is an intervening change in 26 the controlling law.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 27 F.3d 873, 880 (9th Cir. 2009) (citation omitted) (alteration in original). Simply repeating 28 the arguments already considered by the Court fails to satisfy the moving party’s burden 1 to show that reconsideration is warranted. See U.S. v. Westlands Water Dist., 134 F. Supp. 2 2d 1111, 1131 (E.D. Cal. 2001). 3 In his Motion, plaintiff states that he is not “trained or experienced” as a lawyer and 4 is currently unable to access the law library to familiarize himself with the Court’s rules. 5 Mot. at 1-2. Plaintiff states his inability to comply with the Local Rules, as demonstrated 6 by the Discrepancy Notice, is “even more reason to provide some type of legal assistance.” 7 Id. at 2. Plaintiff also reports that he has recently tested positive for the coronavirus and 8 that his “poor condition” prevents him from being able to “prove [his] case.” Id. Plaintiff 9 asserts he is “in need of counsel” based on these facts. Id. at 3. 10 That plaintiff is a layperson who is currently incarcerated with limited access to the 11 law library are not “new or different facts and circumstances” that would necessitate the 12 Court’s reconsideration of its December 18 Order.1 See CivLR 7.1(i)(1) (stating that the 13 party seeking relief must present “new or different facts and circumstances are claimed to 14 exist which did not exist, or were not shown, upon such prior application”). “[I]t is not 15 appropriate for a party to request reconsideration merely to force the court to think about 16 an issue again in the hope that it will come out the other way the second time.” Wallace v. 17 Olson, No. 3:16-CV-1917-AJB-NLS, 2017 WL 1346825, at *2 (S.D. Cal. Apr. 12, 2017), 18 aff’d, 715 F. App’x 797 (9th Cir. 2018) (citation omitted). Consequently, the Court will 19 not reconsider its December 18 Order based on facts it has already addressed. See 20 December 18 Order at 3-5; see also Doc. No. 6 at 4 (District Court’s order denying request 21 for counsel). 22 Further, even if the Court were to revisit its December 18 Order, it would not change 23 its ruling. As the Court has explained, “there is no absolute right to counsel in civil 24 proceedings.” Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). The 25 26 27 1 The Court is aware that inmates’ access to the law library is limited due to pandemic-related restrictive measures, and reiterates that it will consider all reasonable requests by plaintiff for additional time to 28 1 Court may exercise its discretion to appoint counsel only where there is a showing of 2 “exceptional circumstances,” taking into consideration both the complexity of the legal 3 issues involved and the likelihood plaintiff will succeed on the merits. See Terrell v. 4 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (courts may appoint counsel only in 5 “exceptional circumstances”). As this Court and the District Court have observed, 6 plaintiff’s lack of legal training and the challenging logistics of managing his case while 7 incarcerated are shared by many inmate-litigants, and do not create “exceptional 8 circumstances” necessitating the appointment of counsel. 9 Plaintiff also submits proof that he tested positive for the coronavirus on December 10 15, 2020. Mot. at 5-6. While that fact is new, the Court finds it does not materially change 11 the analysis as to whether to appoint counsel. It is an unfortunate fact that exposure to and 12 illness from coronavirus are difficulties faced by many inmates, and do not create 13 “exceptional circumstances” here. Significantly, despite his asserted illness, plaintiff was 14 able to file the instant Motion and continues to demonstrate that he is capable of effectively 15 articulating his claims and communicating with the Court in this action. Nor does 16 plaintiff’s diagnosis increase – or impact in any way – the likelihood that he will succeed 17 on the merits of his claim. Thus, the Court finds that reconsideration of its December 18 18 Order based on plaintiff’s diagnosis alone is not warranted. 19 The Court is also not persuaded by plaintiff’s argument that the Discrepancy Notice 20 proves that he is unable to competently represent himself. Mot. at 2.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUSTIN SALMEN, CDCR #BK-5881, Case No.: 3:20-cv-02088-GPC-KSC
12 Plaintiff, ORDER DENYING MOTION FOR 13 v. RECONSIDERATION OF COURT’S DECEMBER 18, 2020 ORDER 14 CALIFORNIA DEP’T OF DENYING PLAINTIFF’S MOTION CORRECTIONS AND 15 TO APPOINT COUNSEL REHABILITATION; S. ROBERTS; M.
16 GLYNN; J. HODGES; A. KENDALL; [Doc. No. 14] DR. CHAU; H. FRANKLIN; S. 17 ANDERSON; A. SHITTU; S. GATES, 18 Defendants. 19
20 Plaintiff Justin Salmen (“plaintiff”) is proceeding pro se and in forma pauperis in 21 this civil rights action pursuant to 42 U.S.C. § 1983, alleging defendants violated his rights 22 under the United States Constitution. See Doc. No. 7. Before the Court is a document 23 titled “Motion for Appointment of Counsel” (the “Motion”) in which plaintiff reiterates his 24 request to have counsel appointed and objects to the Court’s December 14, 2020 Notice of 25 Document Discrepancy. Doc. No. 14; see also Doc. No. 10. The Court will construe 26 plaintiff’s Motion as a motion for reconsideration of the Court’s December 18, 2020 Order 27 denying his motion to have counsel appointed (the “December 18 Order”). Doc. No. 12. 28 For the following reasons, plaintiff’s Motion is DENIED. 1 I. BACKGROUND 2 On October 22, 2020, plaintiff filed this action, asserting defendants had violated his 3 constitutional rights to due process and freedom from cruel and unusual punishment. Doc. 4 No. 1 at 6-8. Plaintiff moved concurrently to have counsel appointed to represent him in 5 this matter. Doc. No. 3. On November 2, 2020, the District Court denied plaintiff’s first 6 motion for the appointment of counsel, finding there were “no ‘exceptional 7 circumstances’” to justify appointing counsel at that time. Doc. No. 6 at 5. 8 On December 10, 2020, plaintiff renewed his request to have counsel appointed. 9 Doc. No. 11. Plaintiff’s renewed motion lacked supporting documentation, including a 10 memorandum of points and authorities as required by the Local Rules, but the Court 11 nevertheless accepted it for filing and it was deemed filed on the date it was received in the 12 Clerk’s office (the “Discrepancy Notice”). See Doc. No. 10. On December 18, 2020, the 13 Court issued an order denying plaintiff’s motion. Doc. No. 12. As the District Court had 14 done earlier, the Court found that plaintiff had not met his burden to establish exceptional 15 circumstances warranting the appointment of counsel to represent plaintiff in this matter at 16 taxpayer expense. Id. at 5. 17 On December 28, 2020, plaintiff filed the Motion presently before the Court. Doc. 18 No. 14. Plaintiff requests that the Court appoint counsel to represent him or, alternatively, 19 “close the case.” Id. at 3. 20 II. DISCUSSION 21 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests of 22 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 23 F.3d 877, 890 (9th Cir. 2000) (citation omitted). “‘[A] motion for reconsideration should 24 not be granted, absent highly unusual circumstances, unless the court is presented with 25 newly discovered evidence, committed clear error, or if there is an intervening change in 26 the controlling law.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 27 F.3d 873, 880 (9th Cir. 2009) (citation omitted) (alteration in original). Simply repeating 28 the arguments already considered by the Court fails to satisfy the moving party’s burden 1 to show that reconsideration is warranted. See U.S. v. Westlands Water Dist., 134 F. Supp. 2 2d 1111, 1131 (E.D. Cal. 2001). 3 In his Motion, plaintiff states that he is not “trained or experienced” as a lawyer and 4 is currently unable to access the law library to familiarize himself with the Court’s rules. 5 Mot. at 1-2. Plaintiff states his inability to comply with the Local Rules, as demonstrated 6 by the Discrepancy Notice, is “even more reason to provide some type of legal assistance.” 7 Id. at 2. Plaintiff also reports that he has recently tested positive for the coronavirus and 8 that his “poor condition” prevents him from being able to “prove [his] case.” Id. Plaintiff 9 asserts he is “in need of counsel” based on these facts. Id. at 3. 10 That plaintiff is a layperson who is currently incarcerated with limited access to the 11 law library are not “new or different facts and circumstances” that would necessitate the 12 Court’s reconsideration of its December 18 Order.1 See CivLR 7.1(i)(1) (stating that the 13 party seeking relief must present “new or different facts and circumstances are claimed to 14 exist which did not exist, or were not shown, upon such prior application”). “[I]t is not 15 appropriate for a party to request reconsideration merely to force the court to think about 16 an issue again in the hope that it will come out the other way the second time.” Wallace v. 17 Olson, No. 3:16-CV-1917-AJB-NLS, 2017 WL 1346825, at *2 (S.D. Cal. Apr. 12, 2017), 18 aff’d, 715 F. App’x 797 (9th Cir. 2018) (citation omitted). Consequently, the Court will 19 not reconsider its December 18 Order based on facts it has already addressed. See 20 December 18 Order at 3-5; see also Doc. No. 6 at 4 (District Court’s order denying request 21 for counsel). 22 Further, even if the Court were to revisit its December 18 Order, it would not change 23 its ruling. As the Court has explained, “there is no absolute right to counsel in civil 24 proceedings.” Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 1994). The 25 26 27 1 The Court is aware that inmates’ access to the law library is limited due to pandemic-related restrictive measures, and reiterates that it will consider all reasonable requests by plaintiff for additional time to 28 1 Court may exercise its discretion to appoint counsel only where there is a showing of 2 “exceptional circumstances,” taking into consideration both the complexity of the legal 3 issues involved and the likelihood plaintiff will succeed on the merits. See Terrell v. 4 Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (courts may appoint counsel only in 5 “exceptional circumstances”). As this Court and the District Court have observed, 6 plaintiff’s lack of legal training and the challenging logistics of managing his case while 7 incarcerated are shared by many inmate-litigants, and do not create “exceptional 8 circumstances” necessitating the appointment of counsel. 9 Plaintiff also submits proof that he tested positive for the coronavirus on December 10 15, 2020. Mot. at 5-6. While that fact is new, the Court finds it does not materially change 11 the analysis as to whether to appoint counsel. It is an unfortunate fact that exposure to and 12 illness from coronavirus are difficulties faced by many inmates, and do not create 13 “exceptional circumstances” here. Significantly, despite his asserted illness, plaintiff was 14 able to file the instant Motion and continues to demonstrate that he is capable of effectively 15 articulating his claims and communicating with the Court in this action. Nor does 16 plaintiff’s diagnosis increase – or impact in any way – the likelihood that he will succeed 17 on the merits of his claim. Thus, the Court finds that reconsideration of its December 18 18 Order based on plaintiff’s diagnosis alone is not warranted. 19 The Court is also not persuaded by plaintiff’s argument that the Discrepancy Notice 20 proves that he is unable to competently represent himself. Mot. at 2. Notably, similar 21 discrepancy notices were issued for plaintiff’s complaint, motion to proceed in forma 22 pauperis, and first motion to appoint counsel, as well as for the instant Motion. See Doc. 23 Nos. 4, 13. All those documents were accepted for filing notwithstanding plaintiff’s failure 24 to comply with the Local Rules. Id. That is because, contrary to plaintiff’s assertion that 25 the Court is holding him to an unreasonably “high standard” (Mot. at 2), as a pro se litigant 26 plaintiff’s filings are “liberally construed” and “held to less stringent standards” than 27 documents drafted by lawyers. Woods v. Carey, 525 F.3d 886, 890 (9th Cir. 2008). 28 Plaintiff’s complaint that he has been “penalized” for not abiding by the Local Rules (Mot. 1 at 2) is simply not supported by the record, which demonstrates that the Court has routinely 2 accepted, considered, and ruled upon his filings in the case. 2 3 Finally, the Court addresses plaintiff’s request that it “dismiss [his] case and tell 4 [him] who to appeal to” if counsel is not appointed. Mot. at 3. While the Court has and 5 will continue to liberally construe plaintiff’s filings, it must stop short of giving plaintiff 6 legal advice. See Jacobsen v. Filler, 790 F.2d 1362, 1365-66 (9th Cir. 1986) (noting that 7 for the court to give legal advice to a pro se litigant would be contrary to the court’s role 8 as a “referee” in the adversary process). The Court is unwilling to “act as counsel or 9 paralegal” to plaintiff, Pliler v. Ford, 542 U.S. 225, 231 (2004) and declines to tell plaintiff 10 “how to move forward.” See Mot. at 3. 11 III. CONCLUSION 12 For the reasons previously articulated by this Court and the District Court, plaintiff 13 does not meet the standard for the appointment of counsel. Plaintiff offers no new facts or 14 evidence, nor can he point to any change in the controlling law, that would warrant reversal 15 of the Court’s determination that “exceptional circumstances” do not exist which 16 necessitate the appointment of counsel in this case. Plaintiff has failed to demonstrate, in 17 this Motion or in any prior one, that he is likely to succeed on the merits of his claim. The 18 Court notes that plaintiff’s filings to date demonstrate that despite his pro se status, he is 19 able to effectively advocate for himself. In short, plaintiff has failed to demonstrate 20 exceptional circumstances and the Court’s prior rulings will stand. See Burns v. County 21 of King, 883 F.2d 819, 823 (9th Cir. 1989) (affirming denial of motion to appoint counsel 22 where plaintiff had not shown exceptional circumstances). Accordingly, plaintiff’s request 23 for counsel is DENIED. 24 / / 25
26 2 Plaintiff, misapprehending the Discrepancy Notice, asserts that the Court is making “threats” and “going 27 to charge [him] with a crime for not knowing how to litigate.” Id. While plaintiff is expected to comply with the Court’s rules and orders, the Court assures plaintiff that he has not been charged with a crime for 28 1 ORDER 2 For the reasons set forth above, plaintiff's Motion for reconsideration of the Court’s 3 || December 18 Order denying his request for counsel is DENIED. 4 || IT IS SO ORDERED. 5 ||Dated: January 12, 2021 □□ ) 6 Mfficae fa 7 Hort. Karen S. Crawford United States Magistrate Judge
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