Williams v. Wasco State Prison et al

Filing 17

ORDER denying 15 Motion for Reconsideration and request for appointment of counsel signed by Magistrate Judge Michael J. Seng on 6/22/2015. (Lundstrom, T)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

8
9
10

LANCE WILLIAMS,

11

Plaintiff,

12
13

v.

CASE NO. 1:14-cv-01714-MJS (PC)
ORDER:
1) DENYING MOTION FOR
RECONSIDERATION

WASCO STATE PRISON, et al.,

14
Defendants.
15

2) DENYING REQUEST FOR
APPOINTMENT OF COUNSEL
(ECF No. 15)

16
17
18
19
20
21

Plaintiff, Lance Williams, is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff has
consented to Magistrate Judge jurisdiction. The action proceeds on Plaintiff’s Eighth

22
23
24
25

Amendment claims against John Does 1 and 2. No other parties have appeared in the
action.
On June 4, 2015, the Court denied Plaintiff’s request for an investigator. (ECF

26

No. 14). Plaintiff now moves the court for reconsideration of this ruling and also requests

27

appointment of counsel. (ECF No. 15.)

28

1
2
3
4

I.

MOTION FOR RECONSIDERATION
A. Legal Standard
Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from

an order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an

5
6

equitable remedy to prevent manifest injustice and is to be utilized only where

7

extraordinary circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)

8

(internal quotations marks and citation omitted).

9
10
11

“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

12
13
14

Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009).
“A motion for reconsideration may not be used to raise arguments or present evidence

15

for the first time when they could reasonably have been raised in earlier litigation.” Id.

16

Moreover, “recapitulation of the cases and arguments considered by the court before

17

rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands

18
19

Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony
Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)

20
21

requires that a party seeking reconsideration show that “new or different facts or

22

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

23

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

24

B. Analysis

25

In support of his motion for reconsideration of the denial, Plaintiff argues (1) that

26

the Court overlooked authority authorizing the appointment of an investigator in § 1983

27
cases; and (2) that CDCR restrictions on communications with other inmates and
28
2

1

parolees will prevent him from obtaining information from witnesses unless an

2

investigator is appointed.

3
4

As for Plaintiff’s first argument, the authority he cites is inapposite. 18 U.S.C. §
3006 addresses a criminal defendant’s right to counsel. Similarly, Mason v. Arizona

5
6

involved whether an indigent criminal defendant’s right to effective assistance of

7

counsel includes, “when necessary, the allowance of investigative expenses or

8

appointment of investigative assistance… in order to insure effective preparation of [his]

9

defense by [his] attorneys.” 504 F.2d 1345, 1351 (9th Cir. 1974). Here, as the plaintiff in

10
11

a civil § 1983 case, Plaintiff does not have the right to effective assistance of counsel
because he does not have a constitutional right to counsel at all. See Nicholson v.

12
13
14
15
16
17
18
19

Rushen, 767 F.2s 1427, 1427 (9th Cir. 1985). Therefore he has no concomitant right to
the appointment of an investigator. See Rogers v. Giurbino, 288 F.R.D. 469, 489-90
(S.D. Cal. 2012).
CDCR restrictions on communications among inmates, or among inmates and
parolees, do not justify appointment of an investigator, either. Contrary to Plaintiff’s
assertions, these restrictions do not prohibit inmates from contacting one another. Cal.
Code Regs. tit. 15, § 3129 sets forth the procedure an inmate must follow in order to

20
21

initiate communication with a parolee or other inmate: he must have an interview with his

22

Correctional Counselor, complete a Request for Correspondence Approval form, and

23

obtain written authorization from the Warden of his institution. Cal. Code Regs. tit 15, §

24

3129(a)-(c).

25

Accordingly, the Court will deny Plaintiff’s motion for reconsideration.

26
27
28
3

1

II.

2
3

MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff does not have a constitutional right to appointed counsel in this action,

Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an

4
attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United
5
6

States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989).

7

However, in certain exceptional circumstances the Court may request the voluntary

8

assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

9
10
11

Without a reasonable method of securing and compensating counsel, the court
will seek volunteer counsel only in the most serious and exceptional cases. In
determining whether “exceptional circumstances exist, the district court must evaluate

12
13
14
15

both the likelihood of success of the merits [and] the ability of the [plaintiff] to articulate
his claims pro se in light of the complexity of the legal issues involved.” Id. (internal
quotation marks and citations omitted).

16

In the present case, the court does not find the required exceptional

17

circumstances. Plaintiff claims that his mental health status, which has been “elevated

18

to E.O.P.1” warrants appointment of counsel. (ECF No. 15.) Even if it is assumed that

19

Plaintiff is not well versed in the law and that he has made serious allegations which, if

20
21

proved, would entitle him to relief, his case is not exceptional. This court is faced with

22

similar cases almost daily. Further, at this stage in the proceedings, the court cannot

23

make a determination that plaintiff is likely to succeed on the merits, and based on a

24

review of the record in this case, the court does not find that plaintiff cannot adequately

25

articulate his claims. Id.

26

Accordingly, the court will deny Plaintiff’s request for appointment of counsel.

27
28

1

Plaintiff does not explain what “E.O.P.” stands for.

4

1

III.

2

For the foregoing reasons the Court HEREBY ORDERS that:

3
4

CONCLUSION & ORDER

1) Plaintiff’s motion for reconsideration (ECF No. 15) is DENIED;
2) Plaintiff’s request for appointment of counsel (ECF No. 15) is DENIED.

5
6
7

IT IS SO ORDERED.

8
Dated:

June 22, 2015

/s/

9

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5