(PC) Allen v. Rimbach ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN ALLEN, ) Case No.: 1:18-cv-01653-NONE-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S SECOND 13 v. ) MOTION FOR RECONSIDERATION OF COURT’S PRIOR ORDERS DENYING 14 S. RIMBACH, et.al., ) APPOINTMENT OF COUNSEL ) 15 Defendants. ) (ECF No. 40) ) 16 ) ) 17 ) 18 Plaintiff Kevin Allen is proceeding pro se and in forma pauperis in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 Currently before the Court is Plaintiff’s second motion for reconsideration of the Court’s prior 21 orders denying his requests for appointment of counsel, filed April 1, 2020. (ECF No. 40.) 22 I. 23 DISCUSSION 24 Reconsideration motions are committed to the discretion of the trial court. Rodgers v. Watt, 25 722 F.2d 456, 460 (9th Cir. 1983) (en banc); Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. 26 Cir. 1987). A party seeking reconsideration must set forth facts or law of a strongly convincing nature 27 to induce the court to reverse a prior decision. See, e.g., Kern-Tulare Water Dist. v. City of 28 Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 1 828 F.2d 514 (9th Cir. 1987). Further, “ ‘[a] party seeking reconsideration must show more than a 2 disagreement with the Court’s decision, and ‘recapitulation…’” of that which was already considered 3 by the court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. 4 Cal. 2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D N.J. 1992)). 5 Similarly, Local Rule 230(j) requires that a party seeking reconsideration show that “new or different 6 facts or circumstances are claimed to exist which did not exist or were not shown upon such prior 7 motion, or what other grounds exist for the motion[.]” 8 As Plaintiff was previously advised, he does not have a constitutional right to appointed 9 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot 10 require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 11 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 12 exceptional circumstances the Court may request the voluntary assistance of counsel pursuant to 13 section 1915(e)(1). Rand, 113 F.3d at 1525. 14 Without a reasonable method of securing and compensating counsel, the Court will seek 15 volunteer counsel only in the most serious and exceptional cases. In determining whether 16 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 17 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 18 legal issues involved.” Id. (internal quotation marks and citations omitted). 19 In denying Plaintiff’s second motion for appointment of counsel, the Court stated the 20 following: 21 As with Plaintiff’s prior motion for appointment of counsel, he contends he is dyslexic, illiterate and requires the assistance of another inmate to draft his documents. However, the 22 Court does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would 23 entitle him to relief, his case is not exceptional. Circumstances common to most prisoners, 24 such as a lack of education or limited law library access, do not alone establish exceptional circumstances that would warrant a request for voluntary assistance of counsel. The legal 25 issues present in this action are not complex. Further, Defendant has not yet filed an answer, and at this early stage of the proceedings, the Court cannot find that Plaintiff is likely to 26 succeed on the merits. Further, there is no indication from the record that Plaintiff has been 27 unable to adequately articulate claims and prosecute this action—whether alone or with inmate assistance. 28 1 || (Order at 2:4-14, ECF No. 27.) Plaintiff fails to present facts or law to warrant reconsideration of the 2 || prior denial of appointment of counsel in this case as Plaintiff simply repeats most of the same 3 arguments. Plaintiff simply presents the same arguments and circumstances that were previously 4 || considered by the Court. See United States v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998) 5 || (‘A motion for reconsideration should not be used to ask the court ‘to rethink what the court had 6 || already thought through—trightly or wrongly.’ ... However, if the court has made an apparent error of 7 || law and the party moving for reconsideration brings that error to the court’s attention within a 8 || reasonable period of time, the district court has the power under Rule 60(b)(1) to grant relief from the 9 |/error.”). While the Court is sympathetic to Plaintiff's condition and circumstances, the test is not 10 || whether Plaintiff would benefit from the appointment of counsel. See Wilborn v. Escalderon, 789 11 |] F.2d 1328, 1331 (9th Cir. 1986) (“Most actions require development of further facts during litigation 12 || and a pro se litigant will seldom be in a position to investigate easily the facts necessary to support th 13 case.”) The test is whether exception circumstances exist and here, they do not. Accordingly, 14 || Plaintiff's second motion for reconsideration shall be denied. 15 Il. 16 ORDER 17 Based on the foregoing, Plaintiff's second motion for reconsideration of the Court’s prior 18 || orders denying his requests for appointment of counsel is DENIED. 19 20 ||} IT IS SO ORDERED. A (Fe 21 Dated: _ April 2, 2020 OF 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28