Gomez v. Alameida, et al

Filing 122

ORDER DENYING Motion for Reconsideration and Motion for Appointment of Counsel 117 signed by District Judge Lawrence J. O'Neill on 7/19/2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEFFREY KEVIN GOMEZ,

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1:04-cv-05495-LJO-GSA-PC

Plaintiff,

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ORDER DENYING MOTION FOR
RECONSIDERATION AND MOTION FOR
APPOINTMENT OF COUNSEL
(Doc. 117.)

vs.

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EDWARD S. ALAMEIDA, JR., et al.,

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Defendants.

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I.

BACKGROUND

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Jeffrey Kevin Gomez ("Plaintiff") is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint

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commencing this action on March 29, 2004. (Doc. 1.)

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On May 17, 2013, the Magistrate Judge entered findings and recommendations to

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dismiss this action pursuant to 42 U.S.C. § 1997e(a), based on Plaintiff=s failure to exhaust

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administrative remedies before filing suit. (Doc. 111.) On June 25, 2013, the undersigned

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adopted the findings and recommendations in full and dismissed this action without prejudice.

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(Doc. 112.)
On July 18, 2013, Plaintiff filed a notice of appeal to the Ninth Circuit Court of

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Appeals. (Doc. 120.)

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Also on July 18, 2013, Plaintiff filed objections to the Magistrate’s findings and

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recommendations of May 17, 2013. (Doc. 117.) Because the findings and recommendations

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were adopted in full by the undersigned on June 25, 2013, the court construes Plaintiff’s

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objections as a motion for reconsideration of the order adopting the findings and

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recommendations. Plaintiff also requests appointment of counsel.
Plaintiff’s motion for reconsideration and motion for counsel are now before the court.

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II.

MOTION FOR RECONSIDERATION

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A.

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The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42

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F.3d 1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th

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Cir. 1992). Motions to reconsider are committed to the discretion of the trial court. Combs v.

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Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460

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(9th Cir. 1983) (en banc). To succeed, a party must set forth facts or law of a strongly

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convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist.

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v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in

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part on other grounds, 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration,

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Local Rule 230(j) requires a party to show the Anew or different facts or circumstances claimed

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to exist which did not exist or were not shown upon such prior motion, or what other grounds

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exist for the motion.@ L.R. 230(j).

Legal Standard

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The court has reviewed Plaintiff’s motion for reconsideration. Plaintiff has not set forth

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facts or law of a strongly convincing nature to induce the court to reverse its prior decision.

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Therefore, the motion for reconsideration shall be denied.

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III.

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MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff requests court-appointed counsel.

In light of the fact that this case was

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dismissed and closed on June 25, 2013, and Plaintiff has appealed the district court’s decision

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to the Ninth Circuit Court of Appeals, Plaintiff’s motion for counsel is more properly brought

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at the Ninth Circuit. Therefore, Plaintiff’s request for court-appointed counsel shall be denied.

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IV.

Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

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CONCLUSION

reconsideration and motion for appointment of counsel, filed on July 18, 2013, are DENIED.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

July 19, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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