Daniels v. Allison et al

Filing 20

ORDER Denying Motions For Reconsideration (Docs. 17 , 19 ), ORDER Extending Time For Plaintiff To File First Amended Complaint, New Deadline: November 15, 2012, signed by Magistrate Judge Gary S. Austin on 10/3/2012. (First Amended Complaint due by 11/15/2012) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,
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vs.
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K. ALLISON, et al.,
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Defendants.
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____________________________________)

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I.

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NORMAN GERALD DANIELS,

1:12-cv-00545-LJO-GSA-PC
ORDER DENYING MOTIONS FOR
RECONSIDERATION
(Docs. 17, 19.)
ORDER EXTENDING TIME FOR
PLAINTIFF TO FILE FIRST AMENDED
COMPLAINT
NEW DEADLINE: NOVEMBER 15, 2012

BACKGROUND

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Norman Gerald Daniels ("Plaintiff") is a state prisoner proceeding pro se in a civil rights action

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pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on April 9, 2012.

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(Doc. 1.)

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On July 27, 2012, the Court entered an order denying Plaintiff’s motion for appointment of

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counsel. (Doc. 14.) On August 9, 2012, Plaintiff filed objections to the order, and on October 1, 2012,

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Plaintiff filed additional objections. (Docs. 17, 19.) The Court treats Plaintiff’s objections as a motion

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for reconsideration of the order denying appointment of counsel.

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The Court screened the Complaint pursuant to 28 U.S.C. § 1915 and entered an order on

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September 17, 2012, dismissing the Complaint for failure to state a claim with leave to amend. (Doc.

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18.) On October 1, 2012, Plaintiff filed a motion for reconsideration of the Court’s order dismissing the

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Complaint. (Doc. 19.)

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Plaintiff’s two motions for reconsideration are now before the Court.
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MOTIONS FOR RECONSIDERATION

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A.

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Rule 60(b)(6) allows the Court to relieve a party from an order for any reason that justifies relief.

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Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be

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utilized only where extraordinary circumstances . . .” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th

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Cir. 2008) (internal quotations marks and citation omitted). The moving party “must demonstrate both

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injury and circumstances beyond his control . . . .” Id. (internal quotation marks and citation omitted).

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In seeking reconsideration of an order, Local Rule 230(k) requires Plaintiff to show “what new or

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different facts or circumstances are claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion.”

Legal Standard

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“A motion for reconsideration should not be granted, absent highly unusual circumstances, unless

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the district court is presented with newly discovered evidence, committed clear error, or if there is an

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intervening change in the controlling law,” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co.,

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571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted, and “[a] party

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seeking reconsideration must show more than a disagreement with the Court’s decision, and

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recapitulation . . . ” of that which was already considered by the Court in rendering its decision,” U.S.

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v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

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B.

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Plaintiff argues that he is entitled to appointment of counsel because he has “extraordinary

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circumstances” as required under the applicable statute. Objections, Doc. 17 at 1:13-15. Plaintiff

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explains that he is legally blind and it is extremely hard for him to read or write. Plaintiff is incarcerated

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at the California Substance Abuse Treatment Facility in Corcoran, California, and lacks adequate access

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to the law library and the ADA computer, making it difficult to do legal work. He also claims that he

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Order Denying Appointment of Counsel

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is being improperly denied medical devices due to his indigency. Plaintiff has attempted to find legal

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representation, without success.

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Plaintiff has not demonstrated that the Court committed clear error, or presented the Court with

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new information of a strongly convincing nature, to induce the Court to reverse its prior decision.

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Plaintiff has not demonstrated that he has the required exceptional circumstances. At this early stage

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in the proceedings, the court cannot make a determination that Plaintiff is likely to succeed on the merits.

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Plaintiff’s Complaint was dismissed on September 17, 2012, for failure to state a claim, with leave to

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amend. To date, Plaintiff has not filed an amended complaint. Thus, there is no complaint on record

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in this case upon which this case can proceed. It is too early for service of process, and no other parties

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have yet appeared. Moreover, the Court does not find that Plaintiff cannot adequately articulate his

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claims or respond to the Court’s orders. Plaintiff is advised that he is not precluded from renewing the

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motion for appointment of counsel at a later stage of the proceedings. Therefore, the motion for

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reconsideration shall be denied.

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C.

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Plaintiff disagrees with the Court’s assessment of his claims and finds it difficult to comply with

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the Court’s order within the established deadline because it will take time to determine why the Court

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dismissed the Complaint. Plaintiff’s remedy at this juncture is to file a First Amended Complaint, curing

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the deficiencies in the Complaint identified in the Court’s order of September 17, 2012. Plaintiff’s case

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cannot proceed until the Court’s requisite screening process is completed. The Court is required to

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screen complaints such as Plaintiff’s for cognizable claims, pursuant to 28 U.S.C. § 1915, and the Court

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will not order service of process until Plaintiff has filed a complaint containing cognizable claims.

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Therefore, Plaintiff’s motion for reconsideration shall be denied.

Order Dismissing Complaint With Leave to Amend

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In light of Plaintiff’s difficulties in meeting the Court’s deadline to file the First Amended

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Complaint, Plaintiff shall be granted additional time in which to prepare and file the First Amended

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Complaint.

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III.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motions for reconsideration of the Court’s orders denying appointment of

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counsel and dismissing the Complaint with leave to amend, filed on August 9, 2012 and

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October 1, 2012, are DENIED; and

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2.

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Plaintiff is granted an extension of time until November 15, 2012 in which to file a First
Amended Complaint in compliance with the Court’s order of September 17, 2012.

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IT IS SO ORDERED.

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Dated:
6i0kij

October 3, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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