Herrera v. Nguyen

Filing 19

ORDER DENYING 17 Motion for Reconsideration and for Appointment of Counsel, signed by Magistrate Judge Gary S. Austin on 7/9/2013. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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Plaintiff,

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1:12-cv-01915-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION AND FOR
APPOINTMENT OF COUNSEL
(Doc. 17.)

vs.
G. ADAME, et al.,

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Defendants.

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I.

BACKGROUND

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Roberto Herrera ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis

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

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commencing this action on November 26, 2012. (Doc. 1.) On December 6, 2008, Plaintiff

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consented to the jurisdiction of a Magistrate Judge under 28 U.S.C. 636(c), and no other parties

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have made an appearance. (Doc. 5.) Therefore, pursuant to Appendix A(k)(4) of the Local

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Rules of the Eastern District of California, the undersigned shall conduct any and all

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proceedings in the case until such time as reassignment to a District Judge is required. Local

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Rule Appendix A(k)(3).

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On June 12, 2013, the court dismissed this action based on Plaintiff’s failure to state a

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claim, and judgment was entered. (Docs. 13, 14.) On July 1, 2013, Plaintiff filed a motion for

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reconsideration of the district court’s order dismissing this action. Plaintiff also requested

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appointment of counsel to assist Plaintiff with litigation of this case. (Doc. 17.)

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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

Plaintiff’s Motion

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B.

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Plaintiff argues that the court should reconsider its order dismissing this action because

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his Complaint contains cognizable claims. Plaintiff asserts that his medical claim against Dr.

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Nguyen in this case is similar to Plaintiff’s claim against Dr. Burgett in case 2:10-cv-01280-

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GEB-DAD, and the court found cognizable claims under the Eighth Amendment in case 2:10-

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cv-01280-GEB-DAD against Dr. Burgett.

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complaint pursuant to the court’s order of April 3, 2013, because he didn’t know how to amend

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the complaint or what to do next. Plaintiff requests that this case be reopened, and that counsel

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be appointed to assist him with this case.

Plaintiff asserts that he failed to file an amended

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C.

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Plaintiff’s argument that this case should be reopened because his Complaint states a

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claim is unpersuasive, because this case was dismissed as a result of Plaintiff’s failure to

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comply with a court order, not as a result of his failure to state a claim in the Complaint.

Discussion

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On April 3, 2013, the court dismissed Plaintiff’s Complaint for failure to state a claim,

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with leave to file an amended complaint within thirty days. (Doc. 8.) The court’s order gave

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Plaintiff ample guidance, setting forth the relevant legal standards and informing Plaintiff of the

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deficiencies in his Complaint. Id. On April 22, 2013, Plaintiff filed a motion for extension of

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time to file the amended complaint, and on May 2, 2013, the court granted Plaintiff a thirty-day

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extension of time. (Docs. 9, 12.) Plaintiff failed to file the amended complaint or any other

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response to the court’s order before the thirty-day extended deadline expired. (Court Record.)

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At this stage of the proceedings, there was no complaint on file that stated a cognizable claim.

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Therefore, on June 12, 2013, the court dismissed the case for Plaintiff’s failure to state a claim.

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(Doc. 13.)

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Plaintiff has not set forth facts or law of a strongly convincing nature to induce the court

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to reverse its prior decision. Therefore, the motion for reconsideration and for appointment of

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counsel shall be denied.

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III.

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

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CONCLUSION

reconsideration and for appointment of counsel, filed on July 1, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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July 9, 2013

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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