Consiglio v. Brown et al

Filing 60

ORDER DENYING Plaintiff's Motion for Reconsideration of Denial of Request for Appointment of Counsel 59 , signed by Magistrate Judge Stanley A. Boone on 11/5/2018. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SAM CONSIGLIO, JR.,

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Plaintiff,

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vs.
EDMUND G. BROWN, et al.,
Defendants.

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Case No.: 1:16-cv-01268-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION OF DENIAL OF
REQUEST FOR APPOINTMENT OF
COUNSEL
[ECF No. 59]

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Plaintiff Sam Consiglio, Jr., is a civil detainee proceeding pro se and in forma pauperis in

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this civil rights action pursuant to 42 U.S.C. § 1983. In this case, Plaintiff asserts that a ban on

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certain electronic devices at CSH pursuant to 9 C.C.R. § 891 (“Section 891”) (which prohibits

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non-LPS patients, such as sexually violent predators, from having any access to the internet) and

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9 C.C.R. § 4350 (“Section 4350”) (which prohibits all patients in the custody of state hospitals

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from possessing any electronic devices with wireless capabilities, including but not limited to

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cell phones, computers, PDAs, electronic gaming devices, and graphing calculators with internet

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capabilities), amounts to punishment in violation of the Fourteenth Amendment.

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In Plaintiff’s complaint, he made a request for the appointment of counsel. (ECF No. 1,

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at 7.) On April 10, 2017, that request was denied, without prejudice. (ECF No. 8, at 13-14.) On

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February 20, 2018, Plaintiff made a second requires for the appointment of counsel. (ECF No.

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34.) On February 23, 2018, that request was denied, without prejudice. (ECF No. 37.)

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Currently before the Court is Plaintiff’s motion to reconsider the denial of his request for
the appointment of counsel, filed on November 2, 2018. (ECF No. 59.)

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Reconsideration motions are committed to the discretion of the trial court. Rodgers v.

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Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc); Combs v. Nick Garin Trucking, 825 F.2d

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437, 441 (D.C. Cir. 1987). A party seeking reconsideration must set forth facts or law of a

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strongly convincing nature to induce the court to reverse a prior decision. See, e.g., Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff’d in part and

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rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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As Plaintiff was previously advised, 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). The court cannot

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require any attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United

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

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certain exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of

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securing and compensating counsel, the court will seek volunteer counsel only in the most

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serious and exceptional cases. In determining whether “exceptional circumstances exist, the

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district court must evaluate both the likelihood of success on the merits [and] the ability of the

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[plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.”

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Id. (internal quotation marks and citations omitted).

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In the instant motion, Plaintiff presents the same arguments raised and considered by the
As stated in the Court’s

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Court in denying his prior requests for appointment of counsel.

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February 23, 2018, order, the record reflects that Plaintiff can adequately articulate his claim

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despite the limitations imposed upon him as a civil detainee. While a pro se litigant may be

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better served with the assistance of counsel, so long as a pro se litigant, such as Plaintiff in this

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instance, is able to “articulate his claims against the relative complexity of the matter,” the

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“exceptional circumstances” which might require the appointment of counsel do not exist. Rand,

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113 F.3d at 1525 (finding no abuse of discretion under 28 U.S.C. § 1915(e) when district court

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denied appointment of counsel despite fact that pro se litigant “may well have fared better-

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particularly in the realm of discovery and the securing of expert testimony.”) Plaintiff has

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demonstrated, based on the record in this case, that he can represent himself.

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Plaintiff has also not shown anything in the record that makes this case “exceptional” or

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the issues in it particularly complex. Nor does the Court find any likelihood of success on the

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merits. The Court evaluated Plaintiff’s likelihood of success in its July 24, 2018 findings and

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recommendations on his motion for preliminary injunction, and for the reasons explained found

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that Plaintiff did not demonstrate that he is likely to prevail on his claim. (See ECF No. 48, at 3-

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6.) Plaintiff’s motion for reconsideration does not demonstrate otherwise.

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In sum, Plaintiff has not shown that the Court committed clear error, or presented the

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Court with new information of a strongly convincing nature, to induce the Court to reverse its

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prior decision. Accordingly, Plaintiff’s motion for reconsideration filed on November 2, 2018

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(ECF No. 59), is HEREBY DENIED.

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IT IS SO ORDERED.

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Dated:

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November 5, 2018
UNITED STATES MAGISTRATE JUDGE

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