Beitman v. Correct Clear Solutions et al

Filing 249

ORDER that Plaintiff's Motion for Reconsideration (Doc. 233 ) is denied. See the attached order for further information. Signed by Senior Judge James A. Teilborg on 2/3/2022. (RMW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Lee Michael Beitman,

10

Plaintiff,

11

ORDER

v.

12

No. CV-17-08229-PCT-JAT

S. Herrick, et al.,

13

Defendants.

14
15

Pending before the Court is Plaintiff’s Motion for Reconsideration (Doc. 233) of

16

this Court’s January 19, 2022 Order denying Plaintiff’s Motion for Appointment of

17

Counsel (Doc. 223).

18

On January 13, 2022, Plaintiff filed a Motion for Appointment of Counsel. (Doc.

19

221). On January 19, 2022, the Court denied that motion, finding no exceptional

20

circumstances warranted appointment of counsel given Plaintiff’s ability to articulate his

21

claims pro se and a low likelihood of success on the merits of the current case based on the

22

previous jury verdict in a case that largely addressed the same issues. (Doc. 223 at 2). On

23

January 28, 2022, Plaintiff filed the present Motion for Reconsideration of that Order.

24

(Doc. 232).

25
26
27
28

Pursuant to Local Rule 7.2(g)(1):
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. Any such
motion shall point out with specificity the matters that the

1
2
3
4
5
6

movant believes were overlooked or misapprehended by the
Court, any new matters being brought to the Court’s attention
for the first time and the reasons they were not presented
earlier, and any specific modifications being sought in the
Court’s order. No motion for reconsideration of an Order may
repeat any oral or written argument made by the movant in
support of or in opposition to the motion that resulted in the
Order. Failure to comply with this subsection may be grounds
for denial of the motion.

7

First, Plaintiff argues that he “lacks the skill set necessary to” prepare for the final

8

pretrial conference and to represent himself effectively at trial. (Doc. 233 at 2). However,

9

Local Rule 7.2(g)(1) requires that motions for reconsideration do not “repeat any oral or

10

written argument made by the movant in support of or in opposition to the motion that

11

resulted in the Order.” Plaintiff raised these concerns in his original motion and the Court

12

addressed them in its prior Order. (See Doc. 223 at 2). Moreover, Plaintiff’s simultaneously

13

filed Motion for Sanctions (Doc. 236) suggests that he can articulate his claims and his

14

evidentiary objections without the assistance of counsel. Additionally, although Plaintiff

15

seeks counsel to help him file his motions in limine, the deadline to file any such motions

16

was on January 25, 2022.

17

Next, Plaintiff argues that the Court erred in finding the previous jury verdict

18

indicative of his likelihood of success in this case because he contends that the unfavorable

19

verdict resulted from both the Court’s “abuse of discretion and judicial error” and his

20

previous counsel’s ineffective performance. (Id. at 2–3). Plaintiff proffers a variety of

21

examples of the Court’s and his prior counsel’s failings that are unrelated to the present

22

request for counsel. However, as discussed in the prior Order, the Court finds a low

23

likelihood of success on the merits in this case because Defendant Herrick testified in the

24

prior case regarding her treatment of Plaintiff’s facial injuries, which is central to the issues

25

underpinning both cases. (Doc. 223 at 2). Plaintiff does not argue that Defendant Herrick’s

26

testimony was not central to the issues in the previous case nor that the alleged errors of

27

this Court or prior counsel resulted in the improper admission of that testimony. See

28

Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, 215 F.R.D. 581, 582 (D. Ariz.
-2-

1

2003) (“[R]econsideration [may not] be used to ask the Court to rethink what it has already

2

thought.”) (citations omitted).

3

Plaintiff further contends that the Court’s prior Order both suggests that the Court

4

harbors prejudice against him for appealing the unfavorable jury verdict and disincentives

5

Defendants to offer him a favorable pretrial settlement. (Id. at 5–6). Plaintiff contends that

6

the Court’s alleged prejudice constitutes an “exceptional circumstance” that requires the

7

Court to appoint him counsel. (Id. at 7). However, as explained in the Court’s prior Order,

8

a finding of exceptional circumstances only “requires an evaluation of both the likelihood

9

of success on the merits [and] the ability of the petitioner to articulate his claims pro se in

10

light of the complexity of the legal issues involved.” (Doc. 223 at 2) (citing Wilborn v.

11

Escalderon, 789 F.2d 1328 (9th Cir. 1986) (quotations omitted)). The Court does not find

12

that Plaintiff’s arguments of this Court’s alleged prejudice against him to affect the

13

likelihood of success on the merits of his claims before a jury. Nor does the Court find the

14

same to affect his ability to articulate his claims pro se. 1

15

Finally, Plaintiff argues that under Bounds v. Smith, his lack of access to a law

16

library at his prison facility violates his constitutional right to access the courts. (Id. at 6)

17

(citing Bounds v. Smith, 430 U.S. 817 (1977)). In Bounds v. Smith, the Supreme Court held

18

“the fundamental constitutional right of access to the courts requires prison authorities to

19

assist inmates in the preparation and filing of meaningful legal papers by providing

20

prisoners with adequate law libraries or adequate assistance from persons trained in the

21

law.” Bounds, 430 U.S. at 828. However, in Lewis v. Casey, the Supreme Court limited its

22

earlier decision in Bounds and reversed a Ninth Circuit decision upholding a District of

23

Arizona determination that Arizona Department of Corrections violated prisoners’ right to

24

access the courts by failing to update legal materials or provide access to the law library.

25

518 U.S. 343, 346–347 (1996). The Lewis Court clarified that Bounds did not establish “the

26

right to a law library or to legal assistance,” and instead reiterated the well-known right to

27
1

28

To the extent Plaintiff is asking this Court to appoint him counsel based on various alleged
errors of the Court and his previous counsel in his prior case, those are issues squarely
within the Ninth Circuit’s review on appeal and not for this Court to weigh in on.
-3-

1

11

court access. Id. at 350. The Lewis Court went on:
In the cases to which Bounds traced its roots, we had protected
that right by prohibiting state prison officials from actively
interfering with inmates’ attempts to prepare legal documents
or file them, and by requiring state courts to waive filing fees
or transcript fees for indigent inmates. Bounds focused on the
same entitlement of access to the courts. Although it affirmed
a court order requiring North Carolina to make law library
facilities available to inmates, it stressed that that was merely
one constitutionally acceptable method to assure meaningful
access to the courts, and that our decision here ... does not
foreclose alternative means to achieve that goal. In other
words, prison law libraries and legal assistance programs are
not ends in themselves, but only the means for ensuring a
reasonably adequate opportunity to present claimed violations
of fundamental constitutional rights to the courts.

12

Id. at 350–51 (citations omitted). Here, Plaintiff has not alleged that the prison officials are

13

preventing him from his right to access the courts or from presenting his legal claims.

14

Plaintiff’s ability to access the court is evidenced by the various articulate filings before

15

the Court in this case. Thus, the Court does not find Plaintiff’s argument persuasive enough

16

to reconsider its Order denying Plaintiff counsel on this basis.

2
3
4
5
6
7
8
9
10

17

Accordingly,

18

IT IS ORDERED that Plaintiff’s Motion for Reconsideration (Doc. 233) is denied.

19

Dated this 3rd day of February, 2022.

20
21
22
23
24
25
26
27
28

-4-