Gibson v. Dzurenda ( 2020 )

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 CRAIG OTIS GIBSON., Case No. 3:19-cv-00416-MMD-WGC 6 Plaintiff, ORDER v. 7 JAMES DZURENDA, et al., 8 Defendants. 9 10 I. SUMMARY 11 On August 17, 2020, the Court issued a screening order dismissing Plaintiff Craig 12 Otis Gibson’s first amended complaint (ECF No. 12) and closing the case. (ECF No. 17.)1 13 This closed matter is now before the Court on Plaintiff’s motion to alter or amend the 14 judgment under Rule 59(e) of the Federal Rules of Civil Procedure. (ECF No. 20 15 (“Motion”).) Because Plaintiff has not demonstrated he is entitled to the extraordinary 16 remedy of an altered or amended judgment, and as further explained below, the Court 17 will deny the Motion. 18 II. BACKGROUND 19 Plaintiff commenced this action by submitting a civil rights complaint under 42 20 U.S.C. § 1983 with an application to proceed in forma pauperis. (ECF No. 1.) Plaintiff also 21 filed motions for a temporary restraining order, preliminary injunction, and to dispense 22 with the requirement of security. (ECF Nos. 3, 4, 6, 7.) 23 On initial screening, the Court dismissed with prejudice all of Plaintiff’s claims 24 25 1The Court also denied as moot Plaintiff’s motions for temporary restraining order 26 (ECF No. 15), motion to dispense with requirement of security (ECF No. 14), and motion for preliminary injunction (ECF No. 16). (ECF No. 17 at 7.) 27 1 based on fanciful allegations. (ECF No. 10 at 4.)2 The Court dismissed the remaining 2 claims without prejudice for failure to comply with the requirements of Rule 8 of the 3 Federal Rules of Civil Procedure. (Id. at 5.) However, the Court granted Plaintiff leave to 4 amend the non-fanciful claims, warning Plaintiff that he must file an amended complaint 5 within 30 days, and that any amended complaint must comply with the requirements of 6 Rule 8—with failure to do so resulting in dismissal of this action with prejudice. (Id.) The 7 Court also provided Plaintiff with the proper legal standards, an approved form for filing a 8 § 1983 complaint, and informed Plaintiff that conclusory, general, and collective 9 allegations would not be sufficient. (Id. at 6-12.) 10 Plaintiff then filed an amended Complaint. (ECF No. 12.) The Court conducted a 11 second screening, and determined the amended complaint failed to follow the Court’s 12 previous instructions. (ECF No.17.) Specifically, the Court dismissed the amended 13 complaint due to Plaintiff’s repeated fanciful allegations, and continued failure to comply 14 with Rule 8. (Id. at 7.) The Court also ordered Plaintiff not to file any additional documents, 15 and closed the case. (Id.) 16 On August 25, 2020, Plaintiff filed his Motion. (ECF No. 20.) 17 III. DISCUSSION 18 Although the Motion is entitled a “Motion to Alter or Amend Judgment” it appears 19 Gibson is not only seeking reconsideration of the dismissal, but is also seeking leave to 20 amend his complaint with the assistance of appointed counsel.3 Both due to its title, and 21 because Plaintiff filed the Motion eight (8) days after entry of judgment on August 17, 22 2This includes any allegations that Defendants rigged and contaminated Plaintiff’s 23 water pipes to emit saliva and alkaline from batteries bought in the inmate store, threatened to kill him through his food, drugged and hypnotized him to control his mind, 24 and/or instructed other inmates regarding how to hypnotize him. (ECF No. 10 at 11.) 25 3Plaintiff’s Motion is entitled a “Motion to Alter or Amend Judgment,” but the relief 26 requested within includes amendment of judgment, “leave to amend the complaint with association of more experienced counsel” and a request to “vacate dismissal of the 27 Action.” (ECF No. 20 at 5-6.) 1 2020 (ECF Nos. 18, 20),4 the Court construes the Motion as a motion to alter or amend 2 judgment under Rule 59(e). The Court will deny the Motion. 3 “Since specific grounds for a motion to amend or alter are not listed in [Rule 59(e)], 4 the district court enjoys considerable discretion in granting or denying the 5 motion.” McDowell v. Calderon, 197 F.3d 1253, 1255 n. 1 (9th Cir. 1999). But, as the 6 Ninth Circuit has recognized, “a Rule 59(e) motion is an ‘extraordinary remedy, to be used 7 sparingly in the interests of finality and conservation of judicial resources.’” Wood v. Ryan, 8 759 F.3d 1117, 1121 (9th Cir. 2014) (citation omitted). Absent highly unusual 9 circumstances, reconsideration under Rule 59(e) is “available only when (1) the court 10 committed manifest errors of law or fact, (2) the court is presented with newly discovered 11 or previously unavailable evidence, (3) the decision was manifestly unjust, or (4) there is 12 an intervening change in the controlling law.” McDowell, 197 F.3d at 1255 n. 1 (citation 13 omitted). 14 Turning to the content of the Motion, Gibson asks the Court to amend its second 15 screening order, arguing that his amended complaint was improperly dismissed. 16 Specifically, he argues that his amended complaint complied with Rule 8, as it contained 17 a short and plain statement of the claims showing entitlement to relief. (ECF No. 20 at 2- 18 3.) Plaintiff further argues that his claims are sufficient, not “delusional” or fanciful, and 19 the Court should hold him, a pro se plaintiff, to less stringent standards than represented 20 parties. (Id.) Finally, Plaintiff disputes the Court’s assertion that his amended complaint 21 fails to identify which cause of action is being brought against which defendant. (Id. at 3- 22 4.) 23 The Court finds that nothing Plaintiff presents in his Motion offers the Court a way 24 to provide Plaintiff Rule 59(e) relief because the Court’s dismissal order is not clearly 25 26 4Rule 59(e) of the Federal Rules of Civil Procedure states that a “motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” 27 Fed. R. Civ. P. 59(e). 1 erroneous or manifestly unjust, and Plaintiff proffers no new evidence or intervening 2 change in law. The fact that Plaintiff disagrees with the Court’s decision does not entitle 3 him to relief, especially where, as here, he fails to present any valid basis for 4 reconsideration. Further, as the Court previously noted (ECF No. 17 at 2), a district court 5 has the power to dismiss a complaint when a plaintiff fails to comply with Federal Rules 6 of Civil Procedure 8(a) and 8(e). See McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 7 1996); Nevijel v. North Coast Life. Ins. Co., 651 F.2d 671,673 (9th Cir. 1981). And as the 8 Court also stated in the screening orders it issued in this case, in order to state a claim 9 against a named defendant, a complaint must include allegations of specific facts about 10 that defendant. General, conclusory, and vague allegations are insufficient. (ECF No. 17 11 at 5-6.) Plaintiff failed to abide by Rule 8 by including only general and conclusory 12 allegations in his amended complaint and failing to allege specific facts against specific 13 Defendants. The Court’s dismissal order was correct. In simply arguing the Court should 14 not have dismissed his amended complaint, Gibson has not provided the Court with a 15 meritorious reason to alter its prior judgment. 16 Plaintiff also requests another opportunity to amend his complaint with the 17 assistance of appointed counsel given his “exceptional circumstance” and lack of legal 18 knowledge. (ECF No. 20 at 5.) But the Court already gave Plaintiff an opportunity to 19 amend his complaint and Plaintiff failed to abide by the Court’s explicit instructions. (ECF 20 No. 10.) As granting Plaintiff further leave to amend appears futile, the Court will not 21 entertain Plaintiff’s most recent request.5 As the Court noted in its second screening order, 22 Plaintiff’s amended complaint failed to address the Court’s prior ruling, and the other 23 instructions provided in its first screening order. Rather, the amended complaint again 24 included fanciful, collective, and conclusory allegations, and did not distinguish which 25 5The Court explicitly informed Plaintiff that his amended complaint “must comply 26 with the requirements of Rule 8 [and] failure to do so may result in the dismissal of this action with prejudice.” (ECF No. 10 at 5.) 27 1 cause of action was being brought against which of the 31 defendants. (ECF No. 17 at 4- 2 5.) This further weighs against granting Plaintiff leave to amend again. 3 Finally, to the extent Plaintiff is requesting appointment of counsel to amend his 4 complaint, the Court denies his request. (ECF No. 20 at 5.) There is no constitutional right 5 to appointed counsel in a § 1983 action. See e.g., Rand v. Rowland, 113 F.3d 1520, 1525 6 (9th Cir. 1997), opinion reinstated in pertinent part, 154 F.3d 952, 954 n.1 (9th Cir. 1998) 7 (en banc). The pertinent provision in 28 U.S.C. § 1915(e)(1), however, gives a district 8 court discretion to request that an attorney represent an indigent civil litigant. See 28 9 U.S.C. § 1915(e)(1) (“The court may request an attorney to represent any person unable 10 to afford counsel.”); see also, e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 11 1986). While the decision to request counsel lies within the discretion of the district court, 12 a court may exercise its discretion to request counsel only under “exceptional 13 circumstances.” Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). “A finding of 14 exceptional circumstances requires an evaluation of both the likelihood of success on the 15 merits and [the plaintiff's ability to] articulate his claims pro se in light of the complexity of 16 the legal issues involved.” Id. (quoting Wilborn, 789 F.2d at 1331) (internal quotation 17 marks omitted). Exceptional circumstances do not exist here because Plaintiff has not 18 demonstrated a likelihood of success on the merits—the Court dismissed both his 19 complaint and amended complaint, and refers to its prior screening orders for explanation 20 of Plaintiff’s repeated failure to state a claim. (ECF Nos. 10, 17.) Moreover, appointment 21 of counsel is not warranted here because the Court is required to dismiss delusional or 22 fantastical claims under Section 1915(a), and the Court has twice found Plaintiff’s claims 23 delusional or fantastical. (Id.) See also Neitzke v. Williams, 490 U.S. 319, 327-28 24 (1989); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 25 In short, both Plaintiff’s motion to alter or amend judgment, and his request to 26 amend his complaint with assistance of counsel contained therein, are denied. 27 /// IV. CONCLUSION 2 It is therefore ordered that Plaintiff Craig Otis Gibson’s motion to alter or amend 3 || judgment (ECF No. 20) is denied. The Court again instructs Gibson to refrain from filing 4 || any additional documents in this matter. 5 It is further ordered the Court will summarily deny any other motions filed in this 6 || closed case. 7 DATED THIS 7" Day of December 2020. 8 —_ 9 ( A 10 CHIEF UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28