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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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 James Jackson Ellsworth, 13 Plaintiff, 14 15 vs. Prison Health Services, Inc., et al., 16 Defendants. 17 18 ) ) ) ) ) ) ) ) ) ) ) No. CV-11-8070-PCT-RCB-MEA O R D E R Currently pending before the court is plaintiff pro se 19 James Jackson Ellsworth’s “Motion for District Court’s 20 Reconsideration of Magistrate[’]s Denial of Plaintiff’s 21 Motion to Appoint Counsel” (Doc. 131) and his “Motion to 22 Expand the time to File a Joint Proposed Pre-Trial Order” 23 (Doc. 132). 24 Both motions were filed on February 20, 2013. Because this court did not order the filing of a response 25 to the reconsideration motion, defendants did not file one. 26 See LRCiv 7.2(g)(“No response to a motion for reconsideration 27 . . . may be filed unless ordered by the Court[.]”) Although 28 defendants could have responded to the motion to expand, they 1 did not, and the time to do so has passed. 2 (allowing 14 days after service in which to serve and file a 3 responsive memorandum). 4 motions, and based upon its familiarity with the history of 5 this litigation, for the reasons set forth below, the court 6 DENIES the motion for appointment of counsel, but GRANTS the 7 motion to expand. 8 I. 9 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 10 defendants’ summary judgment motion, plaintiff filed a motion 11 for appointment of counsel. 12 appointment explaining that he “has never been to trial and 13 is very limited” in his ability to conduct a trial. 14 (Doc. 128) at 1-2. 15 trial preparation and the related decisions. 16 addition to being “unsure” of what trial preparation entails, 17 plaintiff Ellsworth noted that his “health” was “a factor” in 18 his request, but he did not elaborate. Plaintiff sought such Mot. Further, plaintiff found “overwhelming” Id. at 2. In Id. at 2. 19 Stating that on February 7, 2012,1 this court previously 20 denied a motion for appointment of counsel by plaintiff, the 21 defendants deemed his January 10, 2013, motion as one for 22 reconsideration. 23 asserted that plaintiff’s more recent motion was untimely 24 because it was not brought within “fourteen (14) days after 25 the date of the filing of the Order that is the subject of 26 the motion[,]” as LRCiv 7.2(g)(2) requires. Thus, preliminarily, the defendants The defendants 27 1 Actually, that denial was on February 23, 2012. Ord. (Doc. 56). 28 -2- 1 further argued that plaintiff failed to make the requisite 2 showing of “exceptional circumstances” to warrant appointment 3 of counsel pursuant to 28 U.S.C. § 1915(e)(1). 4 On February 14, 2013, the Hon. United States Magistrate 5 Judge Mark E. Aspey (“the Magistrate Judge”) simply denied 6 plaintiff’s motion. 7 seeking “reconsider[ation]” of that denial primarily because 8 he lacks both formal legal education and trial experience. 9 Mot. (Doc. 131) at 3. Ord. (Doc. 130) at 1. Now plaintiff is Plaintiff posits that the foregoing 10 means that the trial time could be doubled, resulting in 11 increased costs and a waste of “valuable judicial time[.]” 12 Id. 13 As this court has previously recognized, “‘[m]otions for 14 reconsideration are disfavored and should be granted only in 15 rare circumstances.’” Morgal v. Maricopa County Bd. of 16 Sup’rs, 2012 WL 2368478, at *1 (D.Ariz. June 21, 2012) 17 (quoting U.S. v. Vistoso Partners, LLC, 2011 WL 2550387, at 18 *1 (D.Ariz. June 27, 2011 (citation omitted)). Consistent 19 with that view, LRCiv 7.2(g)(1) unequivocally states, in 20 part: 21 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. 22 23 24 25 LRCiv 7.2(g)(1) (emphasis added). 26 reconsideration motion is completely devoid of that requisite 27 showing. 28 Plaintiff Ellsworth’s Further, in direct contravention of LRCiv 7.2(g)(1), in -3- 1 his reconsideration motion, plaintiff Ellsworth merely 2 reiterates his prior argument to the Magistrate Judge that he 3 is seeking appointment of counsel because of his lack of 4 experience in preparing for and participating in a trial. 5 See id. (“No motion for reconsideration of an Order may 6 repeat any . . . argument made by the movant in support of or 7 in opposition to the motion that resulted in the Order.”) 8 Additionally, it is possible to construe plaintiff 9 Ellsworth’s motion as nothing more than his disagreement or 10 dissatisfaction with the Magistrate Judge’s order denying 11 appointment of counsel. 12 more than one occasion, however, “[s]uch ‘dissatisfaction’ or 13 disagreement is not ‘a proper basis for reconsideration[.]’” 14 Morgal, 2012 WL 2368478, at *1 (quoting Spain v. EMC Mortg. 15 Co., 2008 WL 2328358, at *2 (D.Ariz. June 4, 2008) (internal 16 quotation marks and other citations omitted); see also Dennis 17 v. Ayers, 2008 WL 1989304, at *1 (N.D.Cal. May 6, 2008) 18 (Petitioner’s disagreement “with the Court’s prior resolution 19 of the claim . . . is, of course, [an] insufficient [basis] 20 for . . . granting] a motion for reconsideration.”). 21 As this court has pointed out on Finally, LRCiv 7.2(g)(1), governing the “[f]orm and 22 content” of motions for reconsideration, expressly provides 23 that “[f]ailure to comply with th[at] subsection may be 24 grounds for denial of the motion.” Exercising its discretion 25 under that Rule, the court denies plaintiff Ellsworth’s 26 motion for reconsideration because he did not make the 27 requisite showing thereunder for such relief. See LRCiv 28 7.2(g)(1). -4- 1 The court is compelled to point out that notwithstanding 2 his failure to comply with LRCiv 7.2(g)(1), still, plaintiff 3 Ellsworth would not prevail on the merits because he “has not 4 made the predicate showing of ‘exceptional circumstances’ 5 which the Ninth Circuit requires to warrant appointment of 6 counsel pursuant to 28 U.S.C. § 1915(e)(1).” 7 Maricopa County Bd. of Sup’rs, 2012 WL 3028336, at *1 8 (D.Ariz. July 24, 2012) (footnote omitted) (quoting Agyeman 9 v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) 10 (quoting, in turn, Franklin v. Murphy, 745 F.2d 1221, 1236 11 (9th Cir. 1984)) . . . (District courts have discretion 12 pursuant to section 1915(e)(1) to appoint counsel for 13 indigent civil litigants “ ‘only in exceptional 14 circumstances.’ ”). 15 substantive reasons for denying plaintiff Ellsworth’s 16 reconsideration motion. 17 II. 18 See Morgal v. Thus, there are both procedural and “Motion to Expand” The scheduling order required, among other things, that 19 “the parties . . . lodge a joint pretrial statement and 20 proposed order[,] [(“JPTO”)]” at the latest “within 90 days 21 of the Court’s ruling on the last dispositive motion that 22 does not dispose of the case.” 23 (emphasis in original). 24 of defendants’ motion for summary judgment constitutes such 25 an order. 26 parties have 90 days (i.e., by no later than April 4, 2013) 27 in which to lodge a JPTO. 28 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. -5- Plaintiff 1 is requesting an unspecified expansion of time in which to 2 file the JPTO. 3 taking into account, as plaintiff notes, his pro se status 4 and his incarceration, the court hereby GRANTS plaintiff’s 5 motion to expand. 6 (60) days from the date of this Order by which to lodge a 7 joint pretrial statement and proposed order. There being no prejudice to defendants, and Accordingly, the parties shall have sixty 8 As set forth above, the court hereby ORDERS that: 9 (1) plaintiff’s “Motion for District Court’s 10 Reconsideration of Magistrate[’]s Denial of Plaintiff’s 11 motion to Appoint Counsel” (Doc. 131) is DENIED; and 12 (2) plaintiff’s “Motion to Expand the Time to File a 13 Joint Proposed Pre-Trial Order” (Doc. 132) is GRANTED and the 14 parties shall have sixty (60) days from the date of this 15 Order by which to lodge a joint pretrial statement and 16 proposed order. 17 DATED this 20th day of March, 2013. 18 19 20 21 22 23 24 25 Copies to counsel of record and plaintiff pro se 26 27 28 -6-

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