McAllister v. Arizona Department of Corrections et al

Filing 35

ORDER denying 34 Plaintiff's Motion for Reconsideration of his Response to an Order to Show Cause (Doc. 31) and denying 34 Plaintiff's Motion for Reconsideration of Appointment of Counsel. Signed by Judge James A Teilborg on 7/10/12.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) ) Carol Lynn Preston (Nurse Practitioner), ) ) ) Defendant. ) ) Jonathan McAllister, Sr., No. CV 10-2638-PHX-JAT ORDER 15 16 Pending before this Court is Plaintiff’s Response to an Order to Show Cause and 17 Plaintiff’s Request for Reconsideration of his Motion for the Appointment of Counsel. (Doc. 18 34). The Court now rules on these motions. 19 I. Issues 20 Plaintiff combines in his Motion: (1) a Response to an Order to Show Cause regarding 21 the dismissal of his First Amended Complaint; and, (2) a Motion for Reconsideration of his 22 Motion for the Appointment of Counsel. (Doc. 34). The Court will address each Motion 23 separately. 24 A. Plaintiff’s Motion for Reconsideration of His Response to an Order to Show Cause 25 1. Facts 26 Plaintiff began a lawsuit in December of 2010. (Doc 1). In a screening order (Doc. 12) 27 filed on February 24, 2011, the Court ordered service upon one of the defendants and 28 1 dismissed the rest of the name defendants. (Doc. 31 at 1). Plaintiff had numerous difficulties 2 in effecting service on the Defendant, and in response the Magistrate Judge issued an order 3 giving Plaintiff a final chance to serve the Defendant. (Doc. 31). The Magistrate also 4 extended the deadline for service to October 31, 2011. (Doc. 31). As of March 12, 2012, 5 Plaintiff had not successfully effected service on the defendant, and furthermore, had not 6 made any attempt to do so. Id. at 2. At that time, the Magistrate Judge ordered Plaintiff to 7 show cause why the Fist Amended Complaint should not be dismissed and assigned a 8 deadline of April 1, 2012. Id. As of April 6, 2012, the Court had not received a response to 9 the show cause order and therefore dismissed the complaint without prejudice. (Doc. 32). On 10 April 11, 2012, Plaintiff filed the instant response which was dated April 2, 2012. (Doc. 34 11 at 8). The Certificate of Service was dated April 6, 2012. Id. at 9. Because this response to 12 the show cause order was filed after the deadline, and because Plaintiff made no attempt to 13 explain his failure to meet the October 31 or the April 1 deadlines, Plaintiff’s claim has 14 already been dismissed by this Court. Because the Court received this Motion within 28 days 15 of the dismissal of Plaintiff’s complaint, the Court will construe Plaintiff’s Motion as a 16 Motion for Reconsideration pursuant to Federal Rule of Civil Procedure 59(e). 17 2. Legal Standard 18 In relevant part, Rule 59 reads: “(e) Motion to Alter or Amend a Judgment. A motion 19 to alter or amend a judgment must be filed no later than 28 days after the entry of the 20 judgment.” Fed. R. Civ. P. 59(e). “A Rule 59 motion should not be granted ‘unless the 21 district court is presented with newly discovered evidence, committed clear error, or if there 22 is an intervening change in the controlling law.’” McQuillion v. Duncan, 343 F.3d 1012, 23 1014 (9th Cir. 2003)(quoting McDowell v. Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999)(en 24 banc)). The Court will ordinarily deny a motion for reconsideration absent a showing of 25 manifest error or a showing of new facts or legal authority that could not have been brought 26 to the Court’s attention earlier with reasonable diligence. L.R.Civ.P. 7.2(g). No motion for 27 reconsideration may repeat any oral or written argument made by the movant in support of 28 or in opposition to the motion that resulted in the Order for which the party seeks -2- 1 reconsideration. Id. Repeating arguments in a motion to reconsider may be grounds for 2 denying the motion. Id A Rule 59(e) motion may not present evidence that could have been 3 presented at the time of the challenged decision. Kona Enters. Inc. v. Estate of Bishop, 229 4 F.3d 877, 890 (9th Cir. 2000). 5 3. Analysis 6 Plaintiff does not show newly discovered evidence, clearly committed error, or an 7 intervening change in the controlling law. Plaintiff provides the Court with a factual record 8 of his difficulties in effecting process, but that record ends on May 2, 2011. (Doc. 34 at 2-6). 9 Because the Order to Show Cause specifically orders Plaintiff to demonstrate why he failed 10 to meet the October 31, 2011 and April 1, 2012 deadlines, this factual record fails to provide 11 new evidence. Furthermore, this factual background could have been provided prior to the 12 challenged decision and cannot, therefore, constitute evidence in the current preceding. Kona 13 Enters. Inc., 229 F.3d at 890. Additionally, Plaintiff has made no effort to show any errors 14 in the challenged decision. Accordingly, the Court will not reconsider its decision. 15 B. Plaintiff’s Motion for Reconsideration of His Motion for the Appointment of Counsel 16 On March 14, 2011, the Plaintiff moved for Appointment of Counsel on the grounds 17 that the Plaintiff is severely mentally ill. (Doc. 13). On March 28, 2011, the Magistrate Judge 18 denied the Plaintiff’s Motion because the Plaintiff did not sufficiently show any exceptional 19 circumstances; specifically, the Plaintiff did not establish that he had a likelihood of success 20 on the merits of his case or provide sufficient evidence of his mental impairment. (Doc. 18). 21 Additionally, the Magistrate Judge found that Plaintiff’s motion was “clear and well-written, 22 suggesting he is able to articulate his claims without an attorney.” Id. Plaintiff now moves 23 the Court to reconsider this denial. (Doc. 34). Plaintiff’s suit has been previously dismissed 24 and this Order denies reconsideration of that dismissal. 25 Because the Plaintiff’s case has been previously dismissed, his Motion for 26 Appointment of Counsel in this case is now moot. The Court will therefore deny 27 reconsideration. 28 -3- 1 2 3 4 5 6 II. Conclusion IT IS ORDERED denying Plaintiff’s Motion for Reconsideration of his Response (Doc. 34) to an Order to Show Cause (Doc. 31). IT IS FURTHER ORDERED denying the Plaintiff’s Motion for Reconsideration of Appointment of Counsel. (Doc. 34). DATED this 10th day of July, 2012. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-

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