Calloway v. Scribner et al

Filing 46

ORDER DENYING Plaintiff's 37 Motion for Reconsideration and Motion for Appointment of Counsel, signed by Magistrate Judge Dennis L. Beck on 8/25/2014. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMISIS JERMAINE CALLOWAY,

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Plaintiff,

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v.

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Case No. 1:11-cv-00803 DLB PC
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION AND
MOTION FOR APPOINTMENT OF
COUNSEL

A. K. SCRIBNER, et al.,
[ECF No. 37]

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Defendants.

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Plaintiff Jamisis Jermaine Calloway (“Plaintiff”) is a California state prisoner proceeding pro

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se in this civil action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on May 17, 2011.1
On May 9, 2013, Plaintiff filed a motion for reconsideration of the Court’s March 11, 2013,

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order granting Defendant Chen’s motion to dismiss. He also requests the appointment of counsel.
DISCUSSION

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I.

Motion for Reconsideration

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, inadvertence,

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surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could

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not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether

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previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party; (4)

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the judgment is void; or (6) any other reason that justifies relief.” Fed.R.Civ.P. 60(b). Rule 60(b)(6)

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On June 1, 2011, Plaintiff consented to the jurisdiction of the Magistrate Judge. On February 21, 2013, and February
26, 2013, Defendants Allison, Salama, and Chen consented to the jurisdiction of the Magistrate Judge.

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“is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized
only where extraordinary circumstances ...” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir.
2008) (internal quotations marks and citation omitted). The moving party “must demonstrate both
injury and circumstances beyond his control....” Id. (internal quotation marks and citation omitted).
In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or
different facts or circumstances are claimed to exist which did not exist or were not shown upon
such prior motion, or what other grounds exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual circumstances,
unless the district court is presented with newly discovered evidence, committed clear error, or if
there is an intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma
GmbH & Co., 571 F.3d 873, 880 (9th Cir.2009) (internal quotations marks and citations omitted,
and “[a] party seeking reconsideration must show more than a disagreement with the Court's
decision, and recapitulation ...” of that which was already considered by the Court in rendering its
decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D.Cal.2001). To succeed, a
party must set forth facts or law of a strongly convincing nature to induce the court to reverse its
prior decision. See Kern–Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D.Cal.
1986), affirmed in part and reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Here, Plaintiff merely reasserts his previous arguments.

This is insufficient to merit

reconsideration. As previously determined, Plaintiff’s claim against Defendant Chen is time-barred.
At the latest, Plaintiff had until November 14, 2009, to file this action, but he failed to do so until
May 17, 2011. Although Plaintiff contends he named “medical doctor Chan” in his 2007 Second
Amended Complaint, he made no further allegations against “medical doctor Chan.” Therefore, the
Court cannot find that Detective Chen in this action received timely notice of the claims against him.
Plaintiff’s motion for reconsideration will be denied.
II.

Motion for Counsel
Plaintiff does not have a constitutional right to the appointment of counsel in this action.

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353 (9th
Cir. 1981). The Court may request the voluntary assistance of counsel pursuant to 28 U.S.C. §
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1915(e)(1), but it will do so only if exceptional circumstances exist. Palmer, 560 F.3d at 970;
Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In making this determination, the
Court must evaluate the likelihood of success on the merits and the ability of Plaintiff to articulate
his claims pro se in light of the complexity of the legal issues involved. Palmer, 560 F.3d at 970
(citation and quotation marks omitted); Wilborn, 789 F.2d at 1331.

dispositive and they must be viewed together. Palmer, 560 F.3d at 970 (citation and quotation marks
omitted); Wilborn, 789 F.2d at 1331.
In the present case, the Court does not find the required exceptional circumstances. Even if it
is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which,
if proved, would entitle him to relief, his case is not exceptional. The Court is faced with similar
cases almost daily. Therefore, Plaintiff’s request for the appointment of counsel is HEREBY
DENIED.

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Neither consideration is

ORDER
Accordingly, IT IS HEREBY ORDERED:
1) Plaintiff’s motion for reconsideration is DENIED; and
2) Plaintiff’s motion for appointment of counsel is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Dennis

August 25, 2014

L. Beck

UNITED STATES MAGISTRATE JUDGE

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