Garcia v. California Department of Corrections Medical Department of Delano

Filing 26

ORDER DENYING Plaintiff's Motion for Relief From Voluntary Dismissal; ORDER DENYING Motion for Appointment of Counsel 25 , signed by Magistrate Judge Barbara A. McAuliffe on 8/4/17. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWIN GARCIA,

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Plaintiff,
v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS MEDICAL
DEPARTMENT OF DELANO,

Case No. 1:16-cv-00237-BAM (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RELIEF FROM VOLUNTARY
DISMISSAL
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(Doc. No. 25)

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Defendant.

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I.

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Plaintiff Edwin Garcia (“Plaintiff”) is a state prisoner proceeding pro se and in forma

Background

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pauperis in this civil rights action under 42 U.S.C. § 1983. Plaintiff initiated this action on

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February 19, 2016. (ECF No. 1.) Plaintiff consented to the jurisdiction of the United States

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Magistrate Judge. (ECF No. 8.)

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On May 11, 2016, the then-assigned Magistrate Judge screened Plaintiff’s complaint and

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dismissed it with leave to amend within thirty days. (ECF No. 10.) Following multiple

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extensions of time to file an amended complaint, on January 20, 2017, the Court received a

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“Motion to Withdraw 42 USC § 1983 Lawsuit.” (ECF No. 23 at p. 1.) The motion was signed by

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Plaintiff and dated January 16, 2017. (Id.) In the motion, Plaintiff requested that the Court grant

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his motion to withdraw the complaint against the California Department of Corrections Medical

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Department of Delano. Plaintiff indicated that he instead intended to pursue his state claims and

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causes of action “beyond the jurisdiction of this court.” (Id.)

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On January 25, 2017, the Court construed Plaintiff’s motion as one requesting voluntary

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dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a), and directed the Clerk

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of the Court to close the file in this case and to adjust the docket to reflect voluntary dismissal

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without prejudice pursuant to Rule 41(a). (ECF No. 24.) The action was closed the same day.

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On July 13, 2017, Plaintiff submitted a letter to the Court regarding this action. In the

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letter, Plaintiff states that that this action was withdrawn without his acknowledgment or consent.

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Plaintiff explains that he does not read or write English or Spanish and has a TABE Score of 1.0

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for his reading and writing. Plaintiff avers that due to his lack of comprehension, he never knew

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or understood why the Court withdrew his lawsuit. Additionally, Plaintiff contends that his legal

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mail has been tampered with by the California Department of Corrections and Rehabilitation and

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that he has no paperwork for this case because the person assisting him transferred to a different

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prison and took his paperwork. Plaintiff now requests the appointment of counsel to assist him

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with reopening this action.

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The Court construes letter as a motion for relief pursuant to Federal Rule of Civil
Procedure 60(b), along with a motion for the appointment of counsel.
II.

Motion for Reconsideration - Rule 60(b)
A. Legal Standard

Federal Rule of Civil Procedure 60(b) governs the reconsideration of final orders of the

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district court. Rule 60(b) permits a district court to relieve a party from a final order, judgment or

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proceeding on grounds of: “(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

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discovered evidence . . .; (3) fraud . . . by an opposing party; (4) the judgment is void; (5) the

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judgment has been satisfied, released or discharged . . . or (6) any other reason that justifies

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relief.” Fed. R. Civ. P. 60(b). Motions made under Rule 60(b) must be made within a reasonable

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time, “and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or
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order or date of the proceeding.” Fed. R. Civ. P. 60(c)(1). “What constitutes ‘reasonable time’

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depends upon the facts of each case, taking into consideration the interest in finality, the reason

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for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and

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prejudice to the other parties.” Lemoge v. United States, 587 F.3d 1188, 1196-97 (9th Cir. 2009)

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(quoting Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam)).

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B. Discussion
Plaintiff’s moving papers suggest that the withdrawal resulted from a mistake. Rule

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60(b)(1) allows the Court to relieve a party from a final judgment, order or proceeding due to

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mistake, inadvertence, surprise or excusable neglect. Fed. R. Civ. P. 60(b)(1). However,

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Plaintiff’s assertion that this action was withdrawn without his acknowledgement or consent

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appears to be contradicted by the motion to withdraw, which bears his signature. (ECF No. 23;

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see e.g., ECF No. 1.)

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Under Rule 60(b)(1), “[r]elief will not be granted if the mistake, inadvertence, or

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excusable neglect is due to the carelessness on the part of the litigant or his attorney.” Timbisha

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Shoshone Tribe v. Kennedy, 267 F.R.D. 333, 336 (E.D.Cal.2010) (citation and quotation marks

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omitted). Rather, Rule 60(b)(1) requires some justification for “an error beyond a mere failure to

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exercise due care.” Id. Further, Rule 60(b)(1) is “not intended to remedy the effect of a litigation

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decision that a party comes later to regret.” Latshaw v. Trainer Wortham & Co., 452 F.3d 1097,

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1101 (9th Cir. 2006). “For the purposes of subsection (b)(1), parties should be bound by and

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accountable for the deliberate actions of themselves and their chosen counsel . . . .” Id.

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Here, the Court finds that Plaintiff has not provided a sufficient justification for his failure

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to inquire as to the contents of the motion to withdraw. There is no explanation as to why he

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failed to exercise due care, particularly where he admits to an inability to read or write English.

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Further, Plaintiff does not adequately justify why the signed motion to withdraw was filed

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mistakenly or purportedly without his consent. That Plaintiff now regrets any decision to submit

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a signed withdrawal of this action is not a sufficient ground warranting relief. Accordingly,

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Plaintiff’s request for reconsideration shall be denied.

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Additionally, Plaintiff’s related motion for the appointment of counsel shall be denied.
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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds, 154 F.3d 952, 954 n. 1

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(9th Cir. 1998), and the Court cannot require an attorney to represent Plaintiff pursuant to 28

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U.S.C.§ 1915(e)(1). Mallard v. United States District Court for the Southern District of Iowa,

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490 U.S. 296, 298, 109 S.Ct. 1814, 1816 (1989). However, in certain exceptional circumstances

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the Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand,

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113 F.3d at 1525. Without a reasonable method of securing and compensating counsel, the Court

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

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whether “exceptional circumstances exist, the district court must evaluate both the likelihood of

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

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

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Here, the Court does not find the requisite exceptional circumstances. Plaintiff has not

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demonstrated likelihood of success on the merits of his underlying claims, and the Court notes

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that Plaintiff has been unable to state a cognizable claim for relief and there is no operative

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complaint on file in this action.

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III.

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For the reasons stated, Plaintiff’s motion for reconsideration and appointment of counsel

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Conclusion and Order

(ECF No. 25) is HEREBY DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

August 4, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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