Hamilton v. Unknown

Filing 41

ORDER signed by Magistrate Judge Michael J. Seng on 12/26/2013 denying 39 Motion for Reconsideration and directing Clerk to fax copy to Litigation Coordinator at KVSP. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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GEORGE HAMILTON,

Case No. 1:13-cv-01462-AWI-MJS (PC)

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Plaintiff,

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ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION OF ORDER
DENYING APPOINTMENT OF COUNSEL

v.
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(ECF No. 39)
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UNKNOWN,

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Defendant.

CLERK DIRECTED TO FAX COPY OF
ORDER TO LITIGATION COORDINATOR

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This action was opened in the United States District Court for the Northern District of

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California on July 18, 2013, based upon a letter from Plaintiff, an inmate at Kern Valley

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State Prison (“KVSP”), to the Honorable Thelton E. Henderson alleging that prison staff

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participated in a "pattern of racketeering activity" which has led to an "extremely dangerous

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and stressful prison environment." On September 10, 2013, the case was transferred to this

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Court. On December 2, 2013, the Court denied, without prejudice, Plaintiff’s motion for

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appointment of counsel. (ECF No. 34.)

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Before the Court is Plaintiff’s motion seeking reconsideration of the Court’s
December 2, 2013 order denying counsel.
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I.

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

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justifies relief. Rule 60(b)(6) is to be used sparingly as an equitable remedy to prevent

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manifest injustice and is to be utilized only where extraordinary circumstances exist.

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Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). Further, Local Rule 230(j) requires, in

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relevant part, that Plaintiff show “what new or different facts or circumstances are claimed

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

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grounds exist for the motion,” and “why the facts or circumstances were not shown at the

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time of the prior motion.”

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II.

ANALYSIS
Plaintiff argues this case is exceptional for purposes of appointment of counsel

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because the RICO allegations raise complex issues, similar to those found cognizable yet

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not redressed in his previous litigation against CDCR staff. See Hamilton v. Thomas Moore,

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et al., 1:04-cv-05129 OWW WMW PC. He also alleges prison staff refuse to document and

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accommodate his permanent hand injury which causes him pain when writing. Finally, he

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notes he has no access to an attorney directory.
Plaintiff does not point to anything in Thomas Moore, et al.,1 an unrelated, non-RICO

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case dismissed without prejudice for failure to exhaust administrative remedies, that

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suggests a basis for reconsideration of the December 2, 2013 order. The record in Thomas

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Moore, et al. does not appear to support exceptional circumstances in this case, which

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arises from purported RICO claims made by Plaintiff in his July 18, 2013 letter to the

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Honorable Thelton E. Henderson. Thomas Moore, et al. was cited in Plaintiff’s November

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22, 2013 motion for counsel, previously considered by the Court, and remains unavailing.

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Plaintiff’s motion for reconsideration otherwise simply reargues matters previously

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considered by the Court. It does not identify any error of law or fact in the Court’s previous

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order.
As stated in the December 2, 2013, order, Plaintiff does not show exceptional

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Judicial notice taken. Fed. R. Civ. P. 201(d); United States v. Wilson, 631 F.2d 118, 119 (9th Cir.1980).

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circumstances supporting appointment of counsel. The Court can not find at this early

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stage of the proceeding, that Plaintiff is likely to succeed on the merits. The allegations to

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date do not appear to be novel or unduly complex or likely to involve any extensive

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investigation and discovery. The papers filed by Plaintiff in this case reflect an appreciation

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of the legal issues and standards and an ability to express same adequately in writing. The

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Court does not find that at present Plaintiff cannot adequately articulate his claims pro se.
Nevertheless, the Kern Valley State Prison (KVSP) Litigation Coordinator shall be

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asked to inquire into Plaintiff’s request for access to an attorney directory. The Clerk of the

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Court shall be directed to serve a copy of this order on the KVSP Litigation Coordinator via

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facsimile at [phone].

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III.

ORDER

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For the reasons stated above, it is HEREBY ORDERED that:

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Plaintiff’s motion seeking reconsideration of the Court’s December 2, 2013
order denying counsel (ECF No. 39) is DENIED, and

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2.

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The Clerk of the Court is directed to serve a copy of this order on the KVSP
Litigation Coordinator via facsimile at [phone].

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IT IS SO ORDERED.

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Dated:

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December 26, 2013

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

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