Aguilar v. Holland et al

Filing 35

ORDER Denying Plaintiff's 34 Motion to Alter Judgment signed by Chief Judge Lawrence J. O'Neill on 09/28/2017. (Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 BENITO AGUILAR, Case No. 1:13-cv-01356-LJO-EPG (PC) ORDER DENYING PLAINTIFF’S MOTION TO ALTER JUDGMENT Plaintiff, 10 v. 11 (ECF NO. 34) 12 KIM HOLLAND, et al., Defendants. 13 14 15 Benito Aguilar (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 16 this civil rights action filed pursuant to 42 U.S.C. § 1983. On August 23, 2016, the Court 17 adopted the assigned magistrate judge’s findings and recommendations in full (ECF No. 32), 18 dismissed this action, with prejudice, because Plaintiff failed to state a claim (id.), and entered 19 judgment (ECF No. 33). 20 On September 8, 2016, Plaintiff filed a motion to alter order adopting findings and 21 recommendations and dismissing third amended complaint with prejudice (“the Motion”). (ECF 22 No. 34). 23 24 25 26 27 The Ninth Circuit has held that: In general, there are four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an intervening change in controlling law. 28 1 1 Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011) (citing McDowell v. Calderon, 2 197 F.3d 1253, 1255 n.1 (9th Cir. 1999) (en banc) (per curiam)). Altering or amending a 3 judgment under Rule 59(e) is an “extraordinary remedy, to be used sparingly in the interests of 4 finality and conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 5 877, 890 (9th Cir. 2000) (internal quotation marks omitted) (quoting 12 James Wm. Moore et al., 6 Moore’s Federal Practice § 59.30[4] (3d ed. 2000)). Plaintiff argues that the judgment should be altered because he is not well educated, and 7 8 that he needs the assistance of appointed counsel in order to “correct his wrongs in this complaint 9 I have filed.” Plaintiff has failed to establish grounds for altering the judgment. In the Motion, Plaintiff 10 11 simply alleges that he is not well educated, and that he needs appointed counsel. However, 12 Plaintiff already requested counsel twice in this case (ECF Nos. 6 & 15), and both of those 13 requests were denied (ECF Nos. 8 & 16). Plaintiff did not request that the previous denials be 14 reconsidered, or file a new motion to appoint counsel. However, even if he did, this Court finds, 15 as Magistrate Judge Dennis L. Beck did, that “the court cannot make a determination that 16 plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the 17 court does not find that plaintiff cannot adequately articulate his claims.” (ECF No. 16, p. 2). As Plaintiff has failed to establish grounds for altering the judgment, the Motion will be 18 19 denied. 20 Accordingly, based on the foregoing, IT IS HEREBY ORDERED that the Motion is 21 DENIED. IT IS SO ORDERED. 22 23 Dated: /s/ Lawrence J. O’Neill _____ September 28, 2017 UNITED STATES CHIEF DISTRICT JUDGE 24 25 26 27 28 2

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