(PC) Gipbsin v. Roth ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CLARENCE A. GIPBSIN, No. 2:18-cv-03164-TLN-CKD 12 Plaintiff, 13 v. ORDER 14 ROTH, et al., 15 Defendants. 16 17 Plaintiff Clarence A. Gipbsin (“Plaintiff”), a state prisoner proceeding pro se, has filed 18 this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United 19 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 30, 2020, the magistrate judge filed findings and recommendations herein which 21 were served on all parties and which contained notice to all parties that any objections to the 22 findings and recommendations were to be filed within 21 days. (ECF No. 59.) Plaintiff has filed 23 objections to the findings and recommendations as well as a motion for relief from judgment 24 pursuant to Federal Rule of Civil Procedure (“Rule”) 60 and two motions to appoint counsel. 25 (ECF Nos. 61–62, 66–67, 73.) 26 The Court reviews de novo those portions of the proposed findings of fact to which 27 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 28 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 1 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 2 findings of fact to which no objection has been made, the Court assumes its correctness and 3 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 4 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 5 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 6 Having carefully reviewed the entire file under the applicable legal standards, the Court 7 finds the Findings and Recommendations to be supported by the record and by the magistrate 8 judge’s analysis. 9 The Court finds Plaintiff’s Rule 60 motion is premature. Rule 60(b) provides that “the 10 court may relieve a party or its legal representative from a final judgment, order, or proceeding” 11 based on enumerated reasons. However, the July 30, 2020 Order and Findings and 12 Recommendations issued by the magistrate judge was not a final judgment in this case. (See ECF 13 No. 59.) Accordingly, Plaintiff’s Motion for Relief from Judgment is DENIED as premature. 14 (ECF No. 66.) 15 Plaintiff’s motions to appoint counsel are without merit. The Court notes Plaintiff has 16 filed six other motions to appoint counsel, all of which have been denied by the magistrate judge 17 after a careful review of the factors set forth in Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 18 2009).1 (See ECF Nos. 6, 8, 44, 50, 55, 56 (prior motions); see also ECF Nos. 9, 10, 59 (orders 19 denying motions).) After having considered the Palmer factors with respect to Plaintiff’s latest 20 two motions — which are strikingly similar to the prior motions that have been denied — the 21 Court finds Plaintiff again fails to demonstrate exceptional circumstances warranting the 22 appointment of counsel. Palmer, 560 F.3d at 970; see also, e.g., Wood v. Housewright, 900 F.2d 23 1332, 1335–36 (9th Cir. 1990) (denying appointment of counsel where plaintiff complained he 24 had limited access to law library and lacked legal education); Bashor v. Risley, 730 F.2d 1228, 25 1 In certain “exceptional circumstances,” a court may appoint an attorney to represent a pro 26 se plaintiff. See 28 U.S.C. 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 27 Determining whether “exceptional circumstances” exist requires consideration of the plaintiff’s “likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 28 pro se in light of the complexity of the legal issues involved.” Palmer, 560 F.3d at 970. 1 1234 (9th Cir. 1984) (upholding district court’s denial of appointment of counsel to indigent 2 litigant who had no background in practice of law, yet who had thoroughly presented issues in 3 pleading). For these reasons, Plaintiff’s motions to appoint counsel are DENIED. (ECF Nos. 67, 4 73.) 5 Accordingly, IT IS HEREBY ORDERED that: 6 1. The Findings and Recommendations filed July 30, 2020 (ECF No. 59), are adopted in 7 full; 8 2. Defendants’ Motion for an Order Revoking Plaintiff’s In Forma Pauperis Status (ECF 9 No. 37) is GRANTED; 10 3. Plaintiff’s IFP status is hereby REVOKED; 11 4. The Order directing the California Department of Corrections and Rehabilitation 12 (“CDCR”) to collect the filing fee in monthly installments (ECF No. 13) is hereby VACATED; 13 5. Plaintiff is required to furnish the remaining balance of the statutory filing fee of $350 14 in order to proceed with this action; 15 6. Plaintiff is admonished that failure to pay the remaining filing fee within 30 days of the 16 date of electronic filing of this Order will result in dismissal of this action; 17 7. The Clerk of Court is directed to serve a copy of this Order on the Finance Unit of the 18 Court as well as the Director of CDCR; 19 8. Plaintiff’s Motion for Relief from Judgment (ECF No. 66) is DENIED without 20 prejudice as prematurely filed; and 21 9. Plaintiff’s motions for the appointment of counsel (ECF Nos. 67, 73) are DENIED 22 without prejudice. 23 IT IS SO ORDERED. 24 DATED: October 21, 2020 25 26 27 28