(PC) Merino v. Gomez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANISCO MERINO, No. 2:21-cv-00572-DAD-KJN (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S REQUEST FOR RECONSIDERATION OF THE 14 GOMEZ, et al., MAGISTRATE JUDGE’S JANUARY 18, 2023 ORDER 15 Defendants. (Doc. No. 143) 16 17 Plaintiff Francisco Merino is a state prisoner proceeding pro se and in forma pauperis in 18 this civil rights action brought pursuant to 42 U.S.C. § 1983. This 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 January 18, 2023, the assigned magistrate judge issued an order denying plaintiff’s 21 motions for appointment of counsel (Doc. Nos. 134, 136). (Doc. No. 141.) Therein, the 22 magistrate judge found “that plaintiff failed to meet his burden of demonstrating exceptional 23 circumstances warranting the appointment of counsel at this time.” (Id. at 2.) 24 On January 27, 2023, plaintiff filed a one-page, untitled document in which it appears that 25 plaintiff is requesting that “the court reconsider [his] request for the appointment of counsel.” 26 (Doc. No. 143.) The undersigned will construe plaintiff’s filing as a “Request for 27 Reconsideration by the District Court of Magistrate Judge’s Ruling,” as provided by Local Rule 28 ///// 1 303(c). The standard of review for “all such requests is the ‘clearly erroneous or contrary to law’ 2 standard set forth in 28 U.S.C. § 636(b)(1)(A).” L.R. 303(f) (citing Fed. R. Civ. P. 72(a)). 3 Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters may 4 be referred to and decided by a magistrate judge, subject to review by the assigned district judge. 5 Fed. R. Civ. P. 72 (a); see also L.R. 303(c). The district judge shall modify or set aside any part 6 of the magistrate judge’s order which is “found to be clearly erroneous or contrary to law.” L.R. 7 303(f); see also 28 U.S.C. § 636(b)(1)(A). The magistrate judge’s factual determinations are 8 reviewed for clear error, while legal conclusions are reviewed to determine whether they are 9 contrary to law. United States v. McConney, 728 F.2d 1195, 1200–01 (9th Cir. 1984), overruled 10 on other grounds by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir. 1991). “A magistrate 11 judge’s decision is ‘contrary to law’ if it applies an incorrect legal standard, fails to consider an 12 element of [the] applicable standard, or fails to apply or misapplies relevant statutes, case law, or 13 rules of procedure.” Martin v. Loadholt, No. 1:10-cv-00156-LJO-MJS, 2014 WL 3563312, at *1 14 (E.D. Cal. July 18, 2014). “[R]eview under the clearly erroneous standard is significantly 15 deferential, requiring a definite and firm conviction that a mistake has been committed.” 16 Concrete Pipe & Prod. of Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 17 623 (1993) (internal quotation marks omitted). 18 Here, in a single sentence without any argument or elaboration, plaintiff merely requests 19 reconsideration of the magistrate judge’s January 18, 2023 order denying his motions for the 20 appointment of counsel. (Doc. No. 143.) Plaintiff does not articulate any basis for 21 reconsideration, nor explain how the magistrate judge’s order is “clearly erroneous or contrary to 22 law.” As the magistrate judge correctly explained, district courts cannot require counsel to 23 represent indigent prisoners in civil rights actions. (Doc. No. 141 at 1–2) (citing cases). 24 Although “the court may request an attorney to voluntarily represent such a plaintiff” when 25 exceptional circumstances exist, the magistrate judge did not err in finding that plaintiff had not 26 demonstrated exceptional circumstances warranting the appointment of counsel at this time. 27 ///// 28 ///// 1 Accordingly, plaintiff's request for reconsideration of the magistrate judge’s January 18, 2 | 2023 (Doc. No. 143) is denied. 3 IT IS SO ORDERED. * | Dated: _ June 16, 2023 Da A. 2, el 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28