(HC) Carroll v. State of California ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 TREMAYNE CARROLL, No. 2:19-cv-1904-WBS-EFB P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 STATE OF CALIFORNIA, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with this civil rights action. On January 22, 17 2020, the court dismissed this action after plaintiff failed to pay the filing fee or seek leave to 18 proceed in forma pauperis and judgment was duly entered. ECF Nos. 9, 11, 12. On January 27, 19 2020, plaintiff filed a document titled, “Objection to Dismissal/Ruling, Petition for 20 Reconsideration, Extension of Time (60) days, Appointment of Counsel.” ECF No. 13. The 21 court construes the filing as a request for relief from judgment pursuant to Rule 60(b) of the 22 Federal Rules of Civil Procedure and as a request for appointment of counsel. As discussed 23 below, both motions must be denied. 24 Rule 60(b) provides for reconsideration of a final judgment where one of more of the 25 following is shown: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 26 discovered evidence which, with reasonable diligence, could not have been discovered within 27 twenty-eight days of entry of judgment; (3) fraud, misrepresentation, or misconduct of an 28 opposing party; (4) voiding of the judgment; (5) satisfaction of the judgment; and (6) any other 1 reason justifying relief. Fed. R. Civ. P. 60(b). Plaintiff states that he has been transferred 2 numerous times and lost his property. ECF No. 13. To the extent plaintiff seeks relief from 3 judgment on this basis, the motion must be denied. Plaintiff was provided the opportunity to pay 4 the filing fee or seek leave to proceed in forma pauperis – he did neither, has not shown good 5 cause for failing to do so, and has not satisfied the Rule 60(b) standards. Plaintiff’s motion for 6 relief from judgment must be denied. 7 Likewise, the request for counsel is denied. District courts may authorize the appointment 8 of counsel to represent an indigent civil litigant in certain exceptional circumstances. See 28 9 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.1991); Wood v. 10 Housewright, 900 F.2d 1332, 1335–36 (9th Cir.1990); Richards v. Harper, 864 F.2d 85, 87 (9th 11 Cir. 1988). In considering whether exceptional circumstances exist, the court must evaluate (1) 12 the plaintiff’s likelihood of success on the merits; and (2) the ability of the plaintiff to articulate 13 her claims pro se in light of the complexity of the legal issues involved. Terrell, 935 F.2d at 14 1017. The court cannot conclude that plaintiff’s likelihood of success, the complexity of the 15 issues, or the degree of plaintiff’s ability to articulate his claims in what is now a closed case, 16 amount to exceptional circumstances justifying the appointment of counsel at this time. 17 Accordingly, IT IS ORDERED that plaintiff’s request for appointment of counsel (ECF 18 No. 13) is denied. 19 Further, IT IS RECOMMENDED that plaintiff’s “Petition for Reconsideration,” 20 construed as motion for relief from judgment pursuant to Rule 60(b) (ECF No. 13), be denied. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 26 objections shall be served and filed within fourteen days after service of the objections. The 27 parties are advised that failure to file objections within the specified time may waive the right to 28 ///// 1 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 2 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: March 19, 2020. 4 tid, PDEA EDMUND F. BRENNAN 5 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28