Martinez v. Davey et al

Filing 51

ORDER Denying 50 Motion for Reconsideration, signed by Chief Judge Lawrence J. O'Neill on 11/20/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICARDO MARTINEZ,

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Plaintiff,

Case No. 1:16-cv-00084-LJO-BAM (PC)
ORDER DENYING MOTION FOR
RECONSIDERATION

v.
(ECF No. 50)
D. DAVEY, et al.,

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Defendants.

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I.

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Plaintiff Ricardo Martinez (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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Background

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On July 11, 2017, the Court dismissed the first amended complaint with leave to amend

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within thirty days after service. (ECF No. 42). Plaintiff was expressly warned that if he failed to

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file a second amended complaint in compliance with the Court’s order, this action would be

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dismissed for failure to state a claim and failure to obey a court order. (Id. at 10.) On August 25,

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2017, Plaintiff was granted a thirty-day extension of time to amend his complaint. (ECF No. 46.)

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Plaintiff did not file a second amended complaint.

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Accordingly, on October 4, 2017, the Magistrate Judge issued Findings and

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Recommendations that this action be dismissed, with prejudice, based on Plaintiff’s failure to

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state a claim, failure to obey a court order, and failure to prosecute. The Findings and
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Recommendations were served on Plaintiff and contained notice that any objections were to be

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filed within fourteen (14) days after service. (ECF No. 47.) No objections were filed.

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Thereafter, on October 30, 2017, the undersigned adopted the Findings and Recommendations in

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full and dismissed this action, with prejudice, based on Plaintiff’s failure to state a claim, failure

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to obey a court order, and failure to prosecute. (ECF No. 48.) Judgment was entered the same

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date. (ECF No. 49.)

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On November 13, 2017, Plaintiff filed the instant motion for reconsideration, which the

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Court construes as a motion for reconsideration of the order dismissing this action and entry of

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judgment. (ECF No. 50.)

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II.

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A motion for reconsideration, such as that filed by Plaintiff, is treated as a motion to alter

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or amend judgment under Federal Rule of Civil Procedure 59(e) if it is filed within 28 days after

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the entry of judgment. United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir.1992); Fed.

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R. Civ. P. 59(e). Plaintiff filed his motion 14 days after entry of judgment.

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Motion for Reconsideration

Relief pursuant to Rule 59(e) is appropriate when there are highly unusual circumstances,

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the district court is presented with newly discovered evidence, the district court committed clear

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error, or a change in controlling law intervenes. Sch. Dist. No. 1J, Multnomah Cty., Or. v.

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AcandS, Inc., 5 F.3d 1255, 1263 (9th Cir.1993). To avoid being frivolous, such a motion must

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provide a valid ground for reconsideration. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500,

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505 (9th Cir.1986).

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Plaintiff states that he originally mailed his objections to the Magistrate Judge’s Findings

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and Recommendations on October 11, 2017, but they were returned to him on November 6, 2017.

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Plaintiff mailed the documents again on November 7, 2017. Plaintiff’s filing includes a motion

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for appointment of counsel and a proposed second amended complaint. Plaintiff’s October 11,

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2017 objections states that it includes a motion letter requesting an additional thirty day extension

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of time, but no such motion is included.

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Here, Plaintiff appears to claim that reconsideration is warranted because he originally
mailed his objections, second amended complaint, and motion for appointment of counsel on
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October 11, before the October 23, 2017 deadline for filing objections to the Findings and

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Recommendations. Plaintiff does not otherwise state why reconsideration is warranted, but

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requests that the Court accept his second amended complaint. (ECF No. 50.)

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The Court has considered Plaintiff’s moving papers, but does not find that they support

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relief under Rule 59(e) due to highly unusual circumstances. Although Plaintiff asserts that he

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timely mailed his objections to the Findings and Recommendations, this assertion does not

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explain Plaintiff’s failure to file a second amended complaint, which was due on or before

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September 27, 2017. Plaintiff sought and was granted a thirty-day extension of time to file his

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second amended complaint, but Plaintiff did not otherwise attempt to communicate with the

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Court regarding his complaint until he received the Findings and Recommendations

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recommending dismissal of this action. Plaintiff provides no explanation for his failure to do so.

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Although Plaintiff states that he mailed a motion letter requesting an additional 30 days to address

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court deadlines, no motion was ever received by the Court, and Plaintiff fails to provide good

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cause for such an extension of time.
Furthermore, it is clear from Plaintiff’s motion that he is seeking an opportunity to file his

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untimely second amended complaint. Upon review of the proposed second amended complaint,

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the Court finds no grounds to reconsider its final order and judgment dismissing this action for

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failure to state a claim, failure to obey a court order, and failure to prosecute. Plaintiff’s second

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amended complaint fails to cure the deficiencies identified by the Court’s July 11, 2017 screening

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order. Plaintiff again provides conclusory allegations that fail to describe specific actions or

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inactions by the defendants, fails to link Defendants Davey, Lewis, or the Court-Appointed

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Receiver to any constitutional violation, and attempts to bring unrelated claims against unrelated

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defendants. In addition, Plaintiff again seeks to hold Defendants Davey and Lewis liable for the

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actions or omissions of their subordinates, based only upon their supervisory positions.

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The allegations in Plaintiff’s motion for reconsideration, even if considered and construed

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in the light most favorable to Plaintiff, do not support reconsideration of the Court’s dismissal of

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this action.

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III.

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Plaintiff includes a motion for appointment of counsel with his motion for reconsideration.

Motion for Appointment of Counsel

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Plaintiff states that he is unable to afford counsel, he cannot read or write English very well, and

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the issues in this case are particularly complex. Plaintiff attaches a copy of his accommodation

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history.

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As Plaintiff has been informed, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on

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other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to

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represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist.

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of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may

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

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1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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The Court has considered Plaintiff’s motion, but again does not find the required

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exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and

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that he has made serious allegations which, if proved, would entitle him to relief, his case is not

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exceptional. This Court is faced with similar cases filed by prisoners proceeding pro se and in

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forma pauperis almost daily. These prisoners also must conduct legal research and prosecute

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claims without the assistance of counsel.

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Plaintiff’s assertions regarding his need for language accommodations have been taken

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into consideration. Although Plaintiff believes that he has been unable to articulate the merits of

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his case, a review of the record indicates that Plaintiff has submitted documents to the Court for

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consideration without the assistance of counsel. (See, e.g., ECF Nos. 19, 22, 45.) These

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submissions demonstrate that Plaintiff is able to prepare and file documents that clearly set forth
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his contentions without any assistance.
Furthermore, the Court cannot make a determination that Plaintiff is likely to succeed on

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the merits. This action was closed for Plaintiff’s failure to state a claim, failure to obey a court

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order, and failure to prosecute. As discussed, the Court has reviewed the proposed second

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amended complaint, and finds that Plaintiff has failed to cure the deficiencies identified in the

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first amended complaint.

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IV.

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For the reasons stated, Plaintiff’s motion for reconsideration, filed on November 13, 2017,

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Conclusion and Order

(ECF No. 50), is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

November 20, 2017

UNITED STATES CHIEF DISTRICT JUDGE
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