Hernandez v. Ballam, et al.

Filing 42

ORDER Overruling Plaintiff's Objection to Order Denying Motion for Appointment of Counsel, signed by Magistrate Judge Barbara A. McAuliffe on 4/15/18. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ANTHONY CEASAR HERNANDEZ, 11 12 13 14 Case No.: 1:17-cv-00468-LJO-BAM (PC) ORDER OVERRULING PLAINTIFF’S OBJECTION TO ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL Plaintiff, v. BALLAM, et al., [ECF No. 40] Defendants. 15 16 17 Plaintiff Anthony Ceasar Hernandez is a state prisoner proceeding pro se and in forma 18 pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s objection to the Court’s February 11, 2018 order 20 denying his motion for the appointment of counsel, without prejudice. (ECF No. 40.) Plaintiff 21 asserts that the Court erred in determining that his case is not complex because he suffers from 22 severe mental issues and emotional distress which was not properly considered. In addition to 23 matters previously raised, Plaintiff also asserts that he has attempted to obtain a lawyer on his 24 own, although he does not indicate the attorney’s response to his inquiry. The Court liberally 25 construes Plaintiff’s objections as a motion to reconsider its prior ruling. 26 “A motion for reconsideration should not be granted, absent highly unusual 27 circumstances, unless the district court is presented with newly discovered evidence, committed 28 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 1 1 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations 2 marks and citations omitted). “A party seeking reconsideration must show more than a 3 disagreement with the Court’s decision, and recapitulation . . .” of that which was already 4 considered by the Court in rendering its decision, U.S. v. Westlands Water Dist., 134 F. Supp. 2d 5 1111, 1131 (E.D. Cal. 2001) (internal quotation marks and citation omitted). Additionally, 6 pursuant to this Court’s Local Rules, when filing a motion for reconsideration of an order, a 7 party must show “what new or different facts or circumstances are claimed to exist which did not 8 exist or were not shown upon such prior motion, or what other grounds exist for the motion.” 9 Local Rule 230(j). 10 Here, the Court weighed the relevant factors in determining whether exceptional 11 circumstances existed in this case to begin the search for volunteer counsel. See Rand v. 12 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (the district court must evaluate both the 13 likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se 14 considering the complexity of the legal issues involved). As it did previously, the Court finds 15 that Plaintiff’s case is not particularly complex, and although it considered his mental health 16 issues and treatments, the record reflects that he is able to adequately articulate his claims and 17 arguments. Further, at this early stage where no defendant has yet appeared, the Court cannot 18 find a likelihood of success on the merits. Plaintiff has shown no error in the prior ruling. 19 Accordingly, Plaintiff’s objection to the Court’s February 11, 2018 order denying his 20 request for the appointment of counsel, without prejudice (ECF No. 40), is HEREBY 21 OVERRULED. 22 23 24 IT IS SO ORDERED. Dated: /s/ Barbara April 15, 2018 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 25 26 27 28 2

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