Willard v. Neibert et al

Filing 54

ORDER DENYING 53 Plaintiff's Motion for Reconsideration of the Court's February 28, 2017, Order Denying Request for Appointment of Counsel signed by Magistrate Judge Stanley A. Boone on 3/17/2017. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA A. WILLARD, 12 13 14 15 Plaintiff, v. J. NEIBERT, et al., Defendants. 16 17 18 19 ) ) ) ) ) ) ) ) ) ) Case No.: 1:14-cv-01951-AWI-SAB (PC) ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE COURT’S FEBRUARY 28, 2017, ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL [ECF No. 53] Plaintiff Joshua A. Willard is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On March 16, 2017, Plaintiff filed objections to the Court’s February 28, 2017, order denying 20 his request for appointment of counsel. The Court construes Plaintiff’s objections as a request for 21 reconsideration under Federal Rule of Civil Procedure 60(b). 22 Reconsideration motions are committed to the discretion of the trial court. Rodgers v. Watt, 23 722 F.2d 456, 460 (9th Cir. 1983) (en banc); Combs v. Nick Garin Trucking, 825 F.2d 437, 441 (D.C. 24 Cir. 1987). A party seeking reconsideration must set forth facts or law of a strongly convincing nature 25 to induce the court to reverse a prior decision. See, e.g., Kern-Tulare Water Dist. v. City of 26 Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 27 828 F.2d 514 (9th Cir. 1987). 28 1 1 As Plaintiff was previously advised, he does not have a constitutional right to appointed 2 counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot 3 require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States 4 District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain 5 exceptional circumstances the court may request the voluntary assistance of counsel pursuant to 6 section 1915(e)(1). Rand, 113 F.3d at 1525. 7 Without a reasonable method of securing and compensating counsel, the court will seek 8 volunteer counsel only in the most serious and exceptional cases. In determining whether 9 “exceptional circumstances exist, the district court must evaluate both the likelihood of success on the 10 merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the 11 legal issues involved.” Id. (internal quotation marks and citations omitted). 12 Plaintiff has not demonstrated that the Court committed clear error, or presented the Court with 13 new information of a strongly convincing nature, to induce the Court to reverse its prior decision. In 14 the present motion for reconsideration, Plaintiff presents the same arguments raised and considered by 15 the Court in denying his request for appointment of counsel. As stated in the Court’s February 28, 16 2017, order, circumstances common to most prisoners, such as lack of legal education and limited law 17 library access, do not establish exceptional circumstances that would warrant a request for voluntary 18 assistance of counsel. While a pro se litigant may be better served with the assistance of counsel, so 19 long as a pro se litigant, such as Plaintiff in this instance, is able to “articulate his claims against the 20 relative complexity of the matter,” the “exceptional circumstances” which might require the 21 appointment of counsel do not exist. Rand v. Rowland, 113 F.3d at 1525 (finding no abuse of 22 discretion under 28 U.S.C. § 1915(e) when district court denied appointment of counsel despite fact 23 that pro se prisoner “may well have fared better-particularly in the realm of discovery and the securing 24 of expert testimony.”) Plaintiff has not shown anything in the record that makes this case 25 “exceptional” or the issues in it particularly complex. The existence of factual disputes and 26 anticipated cross-examination of witnesses do not indicate the presence of complex legal issues 27 28 2 1 warranting a finding of exceptional circumstances. Id. Further, based on the record in this case, 2 Plaintiff has demonstrated that he is capable of representing himself. Accordingly, Plaintiff’s motion 3 for reconsideration of the Court’s February 28, 2017, order is denied. 4 5 IT IS SO ORDERED. 6 Dated: 7 March 17, 2017 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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