Ellsworth v. Prison Health Services Incorporated et al

Filing 133

ORDER, Plaintiff's Motion for District Court's Reconsideration of Magistrates Denial of Plaintiff's motion to Appoint Counsel 131 is denied; Plaintiff's Motion to Expand the Time to File a Joint Proposed Pre-Trial Order 132 is granted; the Parties shall have 60 days from the date of this Order by which to lodge a joint pretrial statement and proposed order. Signed by Senior Judge Robert C Broomfield on 3/20/13. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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James Jackson Ellsworth,

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Plaintiff,

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vs.
Prison Health Services,
Inc., et al.,

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Defendants.
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No. CV-11-8070-PCT-RCB-MEA
O R D E R

Currently pending before the court is plaintiff pro se

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James Jackson Ellsworth’s “Motion for District Court’s

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Reconsideration of Magistrate[’]s Denial of Plaintiff’s

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Motion to Appoint Counsel” (Doc. 131) and his “Motion to

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Expand the time to File a Joint Proposed Pre-Trial Order”

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(Doc. 132).

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Both motions were filed on February 20, 2013.

Because this court did not order the filing of a response

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to the reconsideration motion, defendants did not file one.

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See LRCiv 7.2(g)(“No response to a motion for reconsideration

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. . . may be filed unless ordered by the Court[.]”) Although

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defendants could have responded to the motion to expand, they

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did not, and the time to do so has passed.

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(allowing 14 days after service in which to serve and file a

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responsive memorandum).

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motions, and based upon its familiarity with the history of

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this litigation, for the reasons set forth below, the court

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DENIES the motion for appointment of counsel, but GRANTS the

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motion to expand.

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I.

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See LRCiv 7.2(b)

Thus, having considered the pending

“Motion for Reconsideration”
On January 10, 2013, less than a week after the denial of

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defendants’ summary judgment motion, plaintiff filed a motion

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for appointment of counsel.

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appointment explaining that he “has never been to trial and

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is very limited” in his ability to conduct a trial.

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(Doc. 128) at 1-2.

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trial preparation and the related decisions.

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addition to being “unsure” of what trial preparation entails,

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plaintiff Ellsworth noted that his “health” was “a factor” in

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his request, but he did not elaborate.

Plaintiff sought such

Mot.

Further, plaintiff found “overwhelming”
Id. at 2.

In

Id. at 2.

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Stating that on February 7, 2012,1 this court previously

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denied a motion for appointment of counsel by plaintiff, the

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defendants deemed his January 10, 2013, motion as one for

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reconsideration.

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asserted that plaintiff’s more recent motion was untimely

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because it was not brought within “fourteen (14) days after

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the date of the filing of the Order that is the subject of

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the motion[,]” as LRCiv 7.2(g)(2) requires.

Thus, preliminarily, the defendants

The defendants

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Actually, that denial was on February 23, 2012. Ord. (Doc. 56).

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further argued that plaintiff failed to make the requisite

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showing of “exceptional circumstances” to warrant appointment

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of counsel pursuant to 28 U.S.C. § 1915(e)(1).

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On February 14, 2013, the Hon. United States Magistrate

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Judge Mark E. Aspey (“the Magistrate Judge”) simply denied

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plaintiff’s motion.

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seeking “reconsider[ation]” of that denial primarily because

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he lacks both formal legal education and trial experience.

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Mot. (Doc. 131) at 3.

Ord. (Doc. 130) at 1.

Now plaintiff is

Plaintiff posits that the foregoing

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means that the trial time could be doubled, resulting in

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increased costs and a waste of “valuable judicial time[.]”

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Id.

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As this court has previously recognized, “‘[m]otions for

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reconsideration are disfavored and should be granted only in

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rare circumstances.’” Morgal v. Maricopa County Bd. of

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Sup’rs, 2012 WL 2368478, at *1 (D.Ariz. June 21, 2012)

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(quoting U.S. v. Vistoso Partners, LLC, 2011 WL 2550387, at

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*1 (D.Ariz. June 27, 2011 (citation omitted)). Consistent

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with that view, LRCiv 7.2(g)(1) unequivocally states, in

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part:

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The Court will ordinarily deny a motion
for reconsideration of an Order absent
a showing of manifest error or a showing
of new facts or legal authority that
could not have been brought to its attention
earlier with reasonable diligence.

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LRCiv 7.2(g)(1) (emphasis added).

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reconsideration motion is completely devoid of that requisite

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showing.

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Plaintiff Ellsworth’s

Further, in direct contravention of LRCiv 7.2(g)(1), in
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his reconsideration motion, plaintiff Ellsworth merely

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reiterates his prior argument to the Magistrate Judge that he

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is seeking appointment of counsel because of his lack of

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experience in preparing for and participating in a trial.

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See id. (“No motion for reconsideration of an Order may

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repeat any . . . argument made by the movant in support of or

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in opposition to the motion that resulted in the Order.”)

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Additionally, it is possible to construe plaintiff

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Ellsworth’s motion as nothing more than his disagreement or

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dissatisfaction with the Magistrate Judge’s order denying

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appointment of counsel.

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more than one occasion, however, “[s]uch ‘dissatisfaction’ or

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disagreement is not ‘a proper basis for reconsideration[.]’”

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Morgal, 2012 WL 2368478, at *1 (quoting Spain v. EMC Mortg.

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Co., 2008 WL 2328358, at *2 (D.Ariz. June 4, 2008) (internal

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quotation marks and other citations omitted); see also Dennis

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v. Ayers, 2008 WL 1989304, at *1 (N.D.Cal. May 6, 2008)

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(Petitioner’s disagreement “with the Court’s prior resolution

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of the claim . . . is, of course, [an] insufficient [basis]

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for . . . granting] a motion for reconsideration.”).

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As this court has pointed out on

Finally, LRCiv 7.2(g)(1), governing the “[f]orm and

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content” of motions for reconsideration, expressly provides

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that “[f]ailure to comply with th[at] subsection may be

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grounds for denial of the motion.” Exercising its discretion

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under that Rule, the court denies plaintiff Ellsworth’s

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motion for reconsideration because he did not make the

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requisite showing thereunder for such relief. See LRCiv

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7.2(g)(1).
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The court is compelled to point out that notwithstanding

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his failure to comply with LRCiv 7.2(g)(1), still, plaintiff

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Ellsworth would not prevail on the merits because he “has not

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made the predicate showing of ‘exceptional circumstances’

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which the Ninth Circuit requires to warrant appointment of

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counsel pursuant to 28 U.S.C. § 1915(e)(1).”

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Maricopa County Bd. of Sup’rs, 2012 WL 3028336, at *1

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(D.Ariz. July 24, 2012) (footnote omitted) (quoting Agyeman

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v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004)

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(quoting, in turn, Franklin v. Murphy, 745 F.2d 1221, 1236

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(9th Cir. 1984)) . . . (District courts have discretion

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pursuant to section 1915(e)(1) to appoint counsel for

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indigent civil litigants “ ‘only in exceptional

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circumstances.’ ”).

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substantive reasons for denying plaintiff Ellsworth’s

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reconsideration motion.

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II.

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See Morgal v.

Thus, there are both procedural and

“Motion to Expand”
The scheduling order required, among other things, that

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“the parties . . . lodge a joint pretrial statement and

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proposed order[,] [(“JPTO”)]” at the latest “within 90 days

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of the Court’s ruling on the last dispositive motion that

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does not dispose of the case.”

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(emphasis in original).

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of defendants’ motion for summary judgment constitutes such

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an order.

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parties have 90 days (i.e., by no later than April 4, 2013)

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in which to lodge a JPTO.

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Ord. (Doc. 13) at 2:20-24

This court’s January 4, 2013, denial

Thus, in accordance with the scheduling order, the

As of March 20, no such order has been lodged.
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Plaintiff

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is requesting an unspecified expansion of time in which to

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file the JPTO.

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taking into account, as plaintiff notes, his pro se status

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and his incarceration, the court hereby GRANTS plaintiff’s

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motion to expand.

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(60) days from the date of this Order by which to lodge a

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joint pretrial statement and proposed order.

There being no prejudice to defendants, and

Accordingly, the parties shall have sixty

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As set forth above, the court hereby ORDERS that:

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(1) plaintiff’s “Motion for District Court’s

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Reconsideration of Magistrate[’]s Denial of Plaintiff’s

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motion to Appoint Counsel” (Doc. 131) is DENIED; and

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(2) plaintiff’s “Motion to Expand the Time to File a

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Joint Proposed Pre-Trial Order” (Doc. 132) is GRANTED and the

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parties shall have sixty (60) days from the date of this

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Order by which to lodge a joint pretrial statement and

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proposed order.

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DATED this 20th day of March, 2013.

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Copies to counsel of record and plaintiff pro se

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