Cooper v. Brown et al

Filing 47

ORDER DENYING Motion for Reconsideration 46 , signed by District Judge Dale A. Drozd on 11/14/2018: 14-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON LEROY COOPER,

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Plaintiff,

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v.

No. 1:15-cv-00908-DAD-GSA (PC)

ORDER DENYING MOTION FOR
RECONSIDERATION

EDMUND G. BROWN, JR., et al.,
(Doc. No. 46)

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Defendants.

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Plaintiff Jason Leroy Cooper is a prisoner proceeding pro se and in forma pauperis in this

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civil rights action pursuant to 42 U.S.C. § 1983. This case proceeds on plaintiff’s second

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amended complaint against defendant Dr. Chakotos for deliberate indifference to plaintiff’s

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serious medical needs in violation of the Eighth Amendment. (Doc. No. 19.)
On July 27, 2018, plaintiff concurrently filed a second1 motion for appointment of counsel

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pursuant to 28 U.S.C. § 1915(e)(1) and motion to delay consideration of defendant’s motion for

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summary judgment by at least ninety days (Doc. No. 42.) Defendant filed his opposition to

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plaintiff’s motions on August 17, 2018. (Doc. No. 44.) Plaintiff did not file a reply. On

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September 4, 2018, the assigned magistrate judge denied plaintiff’s second motion for

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On April 19, 2018, the assigned magistrate judge denied plaintiff’s previous motion for
appointment of counsel. (Doc. No. 33.)
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appointment of counsel without prejudice and granted plaintiff a sixty–day extension of time to

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file his opposition to defendant’s pending motion for summary judgment. (Doc. No. 45 at 3.)

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On October 18, 2018, plaintiff filed objections to the magistrate judge’s order denying his

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second motion for appointment of counsel, and requested review of the magistrate judge’s order

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by the district judge. (Doc. No. 46 at 3.) The court will construe plaintiff’s request as a motion

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for reconsideration of the order denying appointment of counsel. Defendant has not filed an

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opposition to the motion for reconsideration. See L.R. 303(d).

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Federal Rule of Civil Procedure 72(a) provides that non-dispositive pretrial matters may

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be referred to and decided by a magistrate judge, subject to review by the assigned district judge.

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See also Local Rule 303(c). The district judge shall modify or set aside any part of the magistrate

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judge’s order which is “found to be clearly erroneous or contrary to law.” Local Rule 303(f). See

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also 28 U.S.C. § 636(b)(1)(A).

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On a motion to reconsider a magistrate judge’s non-dispositive order, the magistrate

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judge’s factual determinations are reviewed for clear error, and the magistrate judge’s legal

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conclusions are reviewed to determine whether they are contrary to law. United States v.

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McConney, 728 F.2d 1195, 1200–02 (9th Cir. 1984), overruled on other grounds by Estate of

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Merchant v. CIR, 947 F.2d 1390 (9th Cir. 1991). “A magistrate judge’s decision is ‘contrary to

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law’ if it applies an incorrect legal standard, fails to consider an element of [an] applicable

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standard, or fails to apply or misapplies relevant statutes, case law, or rules of procedure.” Martin

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v. Loadholt, No. 1:10-cv-00156-LJO-MJS, 2014 WL 3563312, at *1 (E.D. Cal. July 18, 2014)

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(internal quotations and citations omitted). In reviewing pretrial orders of a magistrate judge, the

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district court “may not simply substitute its judgment for that of the deciding court.” Grimes v.

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City & County of San Francisco, 951 F.2d 236, 241 (9th Cir.1991).

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Plaintiff does not identify any error of law or fact in the magistrate judge’s order in

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moving for its reconsideration. Plaintiff merely argues that the denial of appointment of counsel

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will foreclose him from presenting his claims because he requires counsel to secure a medical

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expert. (Doc. No. 46 at 3, ¶ 7.) Plaintiff avers that, without a medical expert to refute

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defendant’s expert opinions, he cannot successfully oppose defendant’s motion for summary
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judgment. (Id. at 2, ¶ 3.) Plaintiff states that his mother attempted to secure a medical expert for

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him, but the experts contacted declined to discuss assisting plaintiff unless he was represented by

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counsel. (Id. at 2, ¶ 4.) Accordingly, plaintiff requests that the order denying appointment of

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counsel be reconsidered and that counsel be appointed in order to secure a medical expert so that

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he may effectively respond to defendant’s pending motion for summary judgment. (Id. at 3, ¶ 7.)

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However, all of these circumstances were considered by the magistrate judge in issuing the

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September 4, 2018 order denying appointment of counsel.

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Because the motion for reconsideration does not suggest new or different facts or

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circumstances demonstrating that the challenged order was clearly erroneous, plaintiff’s motion

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for reconsideration will be denied. Fed. R. Civ. P. 72(a).

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Accordingly,

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1. Plaintiff’s motion for reconsideration, filed on October 18, 2018 (Doc. No. 46), is

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denied; and
2. Plaintiff is directed to file his opposition to defendant’s motion for summary judgment

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within fourteen (14) days after service of this order.
IT IS SO ORDERED.
Dated:

November 14, 2018
UNITED STATES DISTRICT JUDGE

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