1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PUNAOFO TSQUITO TILEI, Case No.: 3:19-cv-01708-TWR-KSC CDCR #H-96960, 12 ORDER OVERRULING Plaintiff, 13 PLAINTIFF’S OBJECTIONS TO v. THE COURT’S AUGUST 6, 2020 14 RULING AND DENYING REQUEST CALIFORNIA DEP’T OF 15 FOR RECONSIDERATION [Doc. No. CORRECTION AND 59] 16 REHABILITATION; DR. DAVID CLAYTON; DR. PEYMAN SHAKIBA; 17 DR. SAHA; JASHUA N. DOROS; and 18 DOES 1-10, 19 Defendants. 20 21 Plaintiff Punaofo Tsquito Tilei (“plaintiff”) is proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to Title 42, United States Code, Section 1983, 23 alleging defendants violated his rights under the United States Constitution. See Doc. 24 No. 1. Before the Court is a document titled “Plaintiffs Objections to the Court’s August 25 6, 2020 Ruling; and, Request for Reconsideration of Said Ruling” (the “Motion” or 26 “Mot.”). Doc. No. 59. The Court will construe plaintiff’s filing as a motion for 27 reconsideration, rather than an objection pursuant to Federal Rule of Civil Procedure 72. 28 For the following reasons, plaintiff’s Motion is DENIED WITHOUT PREJUDICE. 1 I. BACKGROUND 2 A. Plaintiff’s First Request for Appointment of Counsel 3 On September 7, 2019, plaintiff filed this action, asserting claims for violation of 4 his Eighth Amendment rights, violation of California Government Code §845.6, and 5 intentional infliction of severe emotional distress. Doc. No. 1 at 15-18. On September 6 23, 2019, plaintiff moved for the appointment of counsel. Doc. No. 5. Plaintiff reported 7 that he suffered from a “multiplicity of serious health problems” that caused him chronic 8 pain and often left him bedridden. Id. at 3-4. As a result, plaintiff claimed he was unable 9 to draft documents or pursue discovery. Id. at 4. Plaintiff also asserted he would be 10 better able to present his purportedly complex case with the assistance of counsel. Id. 11 Plaintiff’s motion was accompanied by a request that the District Court take judicial 12 notice of orders from three other federal court cases in 2011 and 2016 in which plaintiff 13 was appointed counsel. See id. at 29-39. On October 17, 2019, the District Court granted 14 plaintiff’s motions to proceed in forma pauperis but denied his motion to have counsel 15 appointed. Doc. No. 10. In doing so, the District Court explicitly found that there were 16 “no ‘exceptional circumstances’” warranting the appointment of counsel at that time. 17 Doc. No. 10 at 6. The District Court denied the motion without prejudice, leaving open 18 the possibility that plaintiff might be appointed counsel if his circumstances changed. Id. 19 B. Plaintiff’s Second Request for Appointment of Counsel 20 On November 7, 2019, plaintiff moved for reconsideration of the District Court’s 21 denial of his motion for the appointment of counsel. Doc. No. 13. Plaintiff again cited 22 his medical condition which allegedly left him “incapacitated” and unable to “adequately 23 advance and prosecute his complaint on his own.” Id. at 1, 3. Plaintiff also stated that 24 the District Court had not addressed the complexity of the legal and medical issues 25 presented by his case. Id. Plaintiff cited Tilei v. McGuinness, 642 F. App’x 719, 722 (9th 26 Cir. 2016), in which the Ninth Circuit found plaintiff’s “physical and mental capacity to 27 be a relevant consideration” in the decision whether to appoint counsel. Id. at 8. Plaintiff 28 reiterated his “request for an attorney to assist him in advancing and prosecuting his civil 1 complaint.” Id. On December 11, 2019, the District Court denied plaintiff’s motion for 2 reconsideration. Doc. No. 18. The District Court found that plaintiff’s “previous filings 3 with the Court” demonstrated that, notwithstanding plaintiff’s arguments to the contrary, 4 “he is capable of conducting legal research, presenting arguments … and understanding 5 the case.” Id. at 3. 6 C. Plaintiff’s Unsuccessful Attempt to Appeal the Denial of Counsel 7 On March 20, 2020, plaintiff filed a “Motion to Stand on His Pleadings” (the 8 “Pleadings Motion”), wherein he requested that the District Court enter final judgment so 9 that he could pursue an appeal. Doc. No. 29. In the Pleadings Motion, plaintiff asserted, 10 inter alia, that the District Court “erred in its rulings denying [his] motion for 11 appointment of counsel [and] denying [his] motion for reconsideration.” Id. at 6. 12 Specifically, plaintiff complained that the District Court did not consider his “substantial 13 medical issues, including physical incapacity to adequately advance and prosecute” this 14 matter. Id. at 4-5. Plaintiff again asserted that the District Court’s refusal to appoint 15 counsel to assist him was contrary to the Ninth Circuit’s holding in Tilei v. McGuinness, 16 642 F. App’x at 722. Id. at 5. On May 4, 2020, the District Court denied plaintiff’s 17 “Motion to Stand on His Pleadings,” finding that “plaintiff is not permitted to appeal the 18 Court’s denial of his Motion to Appoint Counsel until a final judgment is entered.” Doc. 19 No. 36 at 5. The District Court further found plaintiff’s motion to be an “attempt[] to 20 create appellate jurisdiction through manipulation.” Id. at 3. 21 D. Plaintiff’s Third Request for Appointment of Counsel 22 On July 29, 2020, plaintiff again requested that counsel be appointed to assist him 23 by way of a Motion for New Determination Appointing Counsel Due to “Exceptional 24 Circumstances.” Doc. No. 50. That motion was accompanied by a Request for Judicial 25 Notice, requesting the Court take notice of the same federal court orders submitted with 26 his first motion to appoint counsel as well as three unpublished memorandum opinions 27 from the Ninth Circuit, including an opinion from Tilei v. McGuinness. Doc. No. 54. On 28 August 6, 2020, this Court denied plaintiff’s motion without prejudice. Doc. No. 56 at 1, 1 8. The Court noted that it had considered the prior federal court orders and the 2 memorandum opinions, most of which were previously before the Court. Id. at 7. 3 However, the Court was not persuaded by those orders and opinions that there was any 4 reason to depart from the Court’s previous findings that “exceptional circumstances” did 5 not exist such as to warrant the appointment of counsel, and plaintiff had not raised any 6 new facts to the contrary. Id. at 5-7. In particular, the Court observed that despite 7 plaintiff’s claims of incapacity and inability to prosecute his claims, his multiple and 8 detailed filings in the case to date showed he was able to “effectively articulate his claims 9 and communicate with the Court in this action.” Id. at 6-7. Plaintiff now moves the 10 Court to reconsider this decision.1 11 II. DISCUSSION 12 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests 13 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 14 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). “‘[A] motion for reconsideration 15 should not be granted, absent highly unusual circumstances, unless the court is presented 16 with newly discovered evidence, committed clear error, or if there is an intervening 17 change in the controlling law.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & 18 Co., 571 F.3d 873, 880 (9th Cir. 2009) (citation omitted) (alteration in original); see also 19 CivLR 7.1(i)(1) (stating that the party seeking relief must present “what new or different 20 facts and circumstances are claimed to exist which did not exist, or were not shown, upon 21 such prior application”). A motion for reconsideration “is not a vehicle to reargue the 22 motion,” U.S. v.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PUNAOFO TSQUITO TILEI, Case No.: 3:19-cv-01708-TWR-KSC CDCR #H-96960, 12 ORDER OVERRULING Plaintiff, 13 PLAINTIFF’S OBJECTIONS TO v. THE COURT’S AUGUST 6, 2020 14 RULING AND DENYING REQUEST CALIFORNIA DEP’T OF 15 FOR RECONSIDERATION [Doc. No. CORRECTION AND 59] 16 REHABILITATION; DR. DAVID CLAYTON; DR. PEYMAN SHAKIBA; 17 DR. SAHA; JASHUA N. DOROS; and 18 DOES 1-10, 19 Defendants. 20 21 Plaintiff Punaofo Tsquito Tilei (“plaintiff”) is proceeding pro se and in forma 22 pauperis in this civil rights action pursuant to Title 42, United States Code, Section 1983, 23 alleging defendants violated his rights under the United States Constitution. See Doc. 24 No. 1. Before the Court is a document titled “Plaintiffs Objections to the Court’s August 25 6, 2020 Ruling; and, Request for Reconsideration of Said Ruling” (the “Motion” or 26 “Mot.”). Doc. No. 59. The Court will construe plaintiff’s filing as a motion for 27 reconsideration, rather than an objection pursuant to Federal Rule of Civil Procedure 72. 28 For the following reasons, plaintiff’s Motion is DENIED WITHOUT PREJUDICE. 1 I. BACKGROUND 2 A. Plaintiff’s First Request for Appointment of Counsel 3 On September 7, 2019, plaintiff filed this action, asserting claims for violation of 4 his Eighth Amendment rights, violation of California Government Code §845.6, and 5 intentional infliction of severe emotional distress. Doc. No. 1 at 15-18. On September 6 23, 2019, plaintiff moved for the appointment of counsel. Doc. No. 5. Plaintiff reported 7 that he suffered from a “multiplicity of serious health problems” that caused him chronic 8 pain and often left him bedridden. Id. at 3-4. As a result, plaintiff claimed he was unable 9 to draft documents or pursue discovery. Id. at 4. Plaintiff also asserted he would be 10 better able to present his purportedly complex case with the assistance of counsel. Id. 11 Plaintiff’s motion was accompanied by a request that the District Court take judicial 12 notice of orders from three other federal court cases in 2011 and 2016 in which plaintiff 13 was appointed counsel. See id. at 29-39. On October 17, 2019, the District Court granted 14 plaintiff’s motions to proceed in forma pauperis but denied his motion to have counsel 15 appointed. Doc. No. 10. In doing so, the District Court explicitly found that there were 16 “no ‘exceptional circumstances’” warranting the appointment of counsel at that time. 17 Doc. No. 10 at 6. The District Court denied the motion without prejudice, leaving open 18 the possibility that plaintiff might be appointed counsel if his circumstances changed. Id. 19 B. Plaintiff’s Second Request for Appointment of Counsel 20 On November 7, 2019, plaintiff moved for reconsideration of the District Court’s 21 denial of his motion for the appointment of counsel. Doc. No. 13. Plaintiff again cited 22 his medical condition which allegedly left him “incapacitated” and unable to “adequately 23 advance and prosecute his complaint on his own.” Id. at 1, 3. Plaintiff also stated that 24 the District Court had not addressed the complexity of the legal and medical issues 25 presented by his case. Id. Plaintiff cited Tilei v. McGuinness, 642 F. App’x 719, 722 (9th 26 Cir. 2016), in which the Ninth Circuit found plaintiff’s “physical and mental capacity to 27 be a relevant consideration” in the decision whether to appoint counsel. Id. at 8. Plaintiff 28 reiterated his “request for an attorney to assist him in advancing and prosecuting his civil 1 complaint.” Id. On December 11, 2019, the District Court denied plaintiff’s motion for 2 reconsideration. Doc. No. 18. The District Court found that plaintiff’s “previous filings 3 with the Court” demonstrated that, notwithstanding plaintiff’s arguments to the contrary, 4 “he is capable of conducting legal research, presenting arguments … and understanding 5 the case.” Id. at 3. 6 C. Plaintiff’s Unsuccessful Attempt to Appeal the Denial of Counsel 7 On March 20, 2020, plaintiff filed a “Motion to Stand on His Pleadings” (the 8 “Pleadings Motion”), wherein he requested that the District Court enter final judgment so 9 that he could pursue an appeal. Doc. No. 29. In the Pleadings Motion, plaintiff asserted, 10 inter alia, that the District Court “erred in its rulings denying [his] motion for 11 appointment of counsel [and] denying [his] motion for reconsideration.” Id. at 6. 12 Specifically, plaintiff complained that the District Court did not consider his “substantial 13 medical issues, including physical incapacity to adequately advance and prosecute” this 14 matter. Id. at 4-5. Plaintiff again asserted that the District Court’s refusal to appoint 15 counsel to assist him was contrary to the Ninth Circuit’s holding in Tilei v. McGuinness, 16 642 F. App’x at 722. Id. at 5. On May 4, 2020, the District Court denied plaintiff’s 17 “Motion to Stand on His Pleadings,” finding that “plaintiff is not permitted to appeal the 18 Court’s denial of his Motion to Appoint Counsel until a final judgment is entered.” Doc. 19 No. 36 at 5. The District Court further found plaintiff’s motion to be an “attempt[] to 20 create appellate jurisdiction through manipulation.” Id. at 3. 21 D. Plaintiff’s Third Request for Appointment of Counsel 22 On July 29, 2020, plaintiff again requested that counsel be appointed to assist him 23 by way of a Motion for New Determination Appointing Counsel Due to “Exceptional 24 Circumstances.” Doc. No. 50. That motion was accompanied by a Request for Judicial 25 Notice, requesting the Court take notice of the same federal court orders submitted with 26 his first motion to appoint counsel as well as three unpublished memorandum opinions 27 from the Ninth Circuit, including an opinion from Tilei v. McGuinness. Doc. No. 54. On 28 August 6, 2020, this Court denied plaintiff’s motion without prejudice. Doc. No. 56 at 1, 1 8. The Court noted that it had considered the prior federal court orders and the 2 memorandum opinions, most of which were previously before the Court. Id. at 7. 3 However, the Court was not persuaded by those orders and opinions that there was any 4 reason to depart from the Court’s previous findings that “exceptional circumstances” did 5 not exist such as to warrant the appointment of counsel, and plaintiff had not raised any 6 new facts to the contrary. Id. at 5-7. In particular, the Court observed that despite 7 plaintiff’s claims of incapacity and inability to prosecute his claims, his multiple and 8 detailed filings in the case to date showed he was able to “effectively articulate his claims 9 and communicate with the Court in this action.” Id. at 6-7. Plaintiff now moves the 10 Court to reconsider this decision.1 11 II. DISCUSSION 12 Reconsideration is an “extraordinary remedy, to be used sparingly in the interests 13 of finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 14 229 F.3d 877, 890 (9th Cir. 2000) (citation omitted). “‘[A] motion for reconsideration 15 should not be granted, absent highly unusual circumstances, unless the court is presented 16 with newly discovered evidence, committed clear error, or if there is an intervening 17 change in the controlling law.’” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & 18 Co., 571 F.3d 873, 880 (9th Cir. 2009) (citation omitted) (alteration in original); see also 19 CivLR 7.1(i)(1) (stating that the party seeking relief must present “what new or different 20 facts and circumstances are claimed to exist which did not exist, or were not shown, upon 21 such prior application”). A motion for reconsideration “is not a vehicle to reargue the 22 motion,” U.S. v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001), 23 and “[m]ere disagreement with a previous order is an insufficient basis for 24 reconsideration ….” Coleman v. Evergreen Pub. Sch., No. C18-556-RBL, 2018 WL 25 26 27 1 In addition to the instant Motion, since plaintiff’s last request that counsel be appointed, he has directed various ex parte communications to the Court, which have not been accepted for filing. See 28 1 5886452, at *1 (W.D. Wash. Nov. 9, 2018). Therefore, “recapitulation” of the law and 2 arguments already considered by the Court” fails to satisfy the moving party’s burden to 3 show that reconsideration is warranted. Westlands Water Dist., 134 F. Supp. 2d at 1131. 4 Plaintiff makes six main arguments in support of his Motion. First, plaintiff 5 expresses his continued belief that the Court has ignored his September 16, 2019 Request 6 for Judicial Notice and has unfairly accused him of “fabricating information.” Mot. at 2. 7 Second, plaintiff argues that his claim is “legally complex” and will require expert 8 testimony to prove.2 Mot. at 4. Third, plaintiff reminds the Court that he has produced 9 “numerous witness declarations that attest, substantiate and bolster” his claim and 10 protests that the Court has been “silent” as to these declarations. Id. at 4-5. Fourth, 11 plaintiff states he has “introduced evidence” of alleged improper conduct by defendants’ 12 counsel. Id. at 5. He argues that it is “unfair” that he is “pitted against” these attorneys 13 and that he requires counsel because the Attorney General’s case is “tainted and 14 questionable.” Id. at 6. Fifth, plaintiff takes issue with the District Court’s earlier finding 15 that plaintiff’s medical records undermine his allegations. See Doc. No. 56 at 5 (citing 16 Doc. No. 25 at 5). According to plaintiff, those records are self-serving and prepared by 17 the defendants in the case, such that “justice would be denied” if the Court were to rely 18 on them. Id. at 6. Finally, plaintiff again asserts that he will soon undergo spinal 19 surgery, but that the date of that surgery is unknown to him for “security reasons.” Id. 20 As before, plaintiff does not state that he is currently convalescing from said surgery. Id. 21 Plaintiff further disputes the Court’s previous finding that neither his medical conditions 22 nor his lack of legal training constitutes exceptional circumstances. Id. at 7. Plaintiff 23 states that his situation is unique (and, presumably, exceptional) because his multiple 24 medical conditions cause him severe physical and psychological pain. Id. 25
26 2 Plaintiff also complains, again, that he is unable to access the law library and other legal resources. 27 Mot. at 4. The Court reminds plaintiff that it has previously granted, and will continue to consider, all reasonable requests for additional time that plaintiff may require to research and prepare documents in 28 1 Plaintiff’s second, third, fifth and sixth arguments have already been considered, 2 and rejected, by the Court. Plaintiff’s Motion merely seeks reconsideration of those 3 arguments in the hopes of a different outcome, and is without merit. “While a motion for 4 reconsideration allows a party to bring a material oversight to the court’s attention, it is 5 not appropriate for a party to request reconsideration merely to force the court to think 6 about an issue again in the hope that it will come out the other way the second time.” 7 Wallace v. Olson, No. 3:16-CV-1917-AJB-NLS, 2017 WL 1346825, at *2 (S.D. Cal. 8 Apr. 12, 2017), aff’d, 715 F. App’x 797 (9th Cir. 2018) (citation omitted). Consequently, 9 the Court will not address grounds to appoint counsel that it already addressed in its 10 previous Orders denying appointment of counsel. See Doc. Nos. 10, 18, 36, 56. 11 Plaintiff’s fourth argument is essentially that defendants’ counsel should be 12 sanctioned for unethical conduct. Mot. at 6. The Court finds that plaintiff’s accusations 13 are entirely speculative, and will not credit them. Regardless, the salient issue is whether 14 plaintiff is capable of litigating his claims on his own behalf; his opponent’s behavior is 15 not at issue. As the Court has observed, plaintiff has shown himself able articulate to the 16 Court the facts, circumstances and law applicable to his claims. The Court therefore 17 declines to revisit its previous finding that plaintiff has not established “exceptional 18 circumstances” requiring that counsel be appointed to represent plaintiff. 19 Finally, the Court turns to plaintiff’s argument that the Court has “ignored” his 20 September 16, 2019 Request for Judicial Notice (the “RJN”), which was attached to his 21 first motion for the appointment of counsel.3 Mot. at 2. As noted, the RJN was attached 22 to plaintiff’s first motion for the appointment of counsel, which was denied. See Doc. 23 No. 5 at 26-29; Doc. No. 10. Thereafter, plaintiff referred to the RJN in his November 24 2019 Motion for Reconsideration (see Doc. No. 13 at 2) and his Pleadings Motion (see 25
26 3 Because plaintiff’s repeated contacts with the Court indicated he was unaware whether his RJN was 27 ever received or docketed, the undersigned recently directed the Clerk’s office to send plaintiff an ECF- stamped copy of the RJN, showing that the RJN was docketed on September 23, 2019, and comprises 28 1 Doc. No. 29 at 4). Plaintiff filed a virtually identical RJN in support of his July 2020 2 motion for the appointment of counsel. Doc. No. 54. All of these motions were denied. 3 See Doc. Nos. 10, 18, 36, and 56. Plaintiff may disagree with those decisions, but it can 4 hardly be said that his RJN has been “ignored.” See Wallace, 2017 WL 1346825, at *3 5 (denying motion to reconsider where plaintiff merely “re-directed the Court” to 6 previously filed documents “in hopes that the Court might change its mind”). 7 The remainder of plaintiff’s argument results from a misapprehension of the 8 District Court’s denial of his Pleadings Motion. See Doc. No. 36. Contrary to plaintiff’s 9 summary of that order, the District Court did not accuse plaintiff of “manipulating the 10 Court” or “fabricating information” for seeking a ruling on the RJN, nor did the District 11 Court state (or even imply) that plaintiff never filed the RJN. Mot. at 2-3. Instead, the 12 District Court observed that plaintiff could not appeal the order denying plaintiff’s 13 motion to appoint counsel, Doc. No. 5, until final judgment had been entered. Doc. No. 14 36 at 3-4. Thus, the “manipulation” with which the District Court was concerned was 15 plaintiff’s improper effort to “manufacture” appellate jurisdiction by requesting the Court 16 to enter a final judgment. See id. Plaintiff may disagree with the District Court’s 17 decision, but that disagreement does not create a basis upon which to appoint counsel. 18 Moreover, even if the Court were to re-visit its prior rulings, it would nevertheless 19 decline to change them. As the Court has explained, “there is no absolute right to counsel 20 in civil proceedings.” Hedges v. Resolution Trust Corp., 32 F.3d 1360, 1363 (9th Cir. 21 1994). Pursuant to 28 U.S.C § 1915(e)(1), the Court may in its discretion appoint 22 counsel for indigent civil litigants. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 23 1991). However, the Court will only appoint counsel upon a finding of “ʻexceptional 24 circumstances.’” Terrell, 935 F.2d at 1017. The Court must consider both plaintiff’s 25 ability to articulate his claims in light of the complexity of the legal issues involved and 26 the likelihood he will succeed on the merits. Id. Neither factor is enough, standing alone, 27 to support a finding of exceptional circumstances, but rather they “must be viewed 28 together before reaching a decision.” Id. 1 For the reasons previously articulated by this Court and the District Court, plaintiff 2 not meet the standard for the appointment of counsel. Plaintiff offers no new facts 3 || or evidence, nor can he point to any change in the controlling law, that would warrant 4 ||reversal of the Court’s determination that “exceptional circumstances” do not exist which 5 || necessitate the appointment of counsel in this case. Plaintiff has failed to demonstrate, in 6 || this Motion or in any prior one, that he is likely to succeed on the merits of his claim, 7 || which the District Court has noted is a “relatively straightforward” one. See Doc. No. 10 8 || at 4-5 (quoting Harrington v. Scribner, 785 F.3d 1299, 1309 (9th Cir. 2015); see also 9 || Doc. Nos. 18, 25,56. And, as before, the Court notes that plaintiffs prolific activity on 10 docket (both before and after the filing of the instant Motion) demonstrate that despite 11 pro se status and the constellation of medical conditions and symptoms from which he 12 || allegedly suffers, plaintiff is capable of effectively articulating his claims and 13 ||communicating with the Court in this action. In short, plaintiff has failed to demonstrate 14 || exceptional circumstances and the Court’s prior rulings will stand. See Burns v. County 15 || of King, 883 F.2d 819, 823 (9th Cir. 1989) (affirming denial of motion to appoint counsel 16 || where plaintiff had not shown exceptional circumstances). 17 ORDER 18 For the reasons set forth above, the Court OVERRULES plaintiffs objections to 19 August 6, 2020 Order and DENIES WITHOUT PREJUDICE plaintiffs Motion for 20 || Reconsideration [Doc. No. 59]. 21 || IT ISSO ORDERED. 22 ||Dated: October 8, 2020 A /; ) 23 WV GP “EEE Hori. Karen S. Crawford United States Magistrate Judge 25 26 27 28