Bowell v. Montoya et al

Filing 99

ORDER DENYING 92 Motion For Appointment of Counsel; ORDER Denying Plaintiff's Motions for Reconsideration re 92 , 94 , 97 , 98 , signed by Magistrate Judge Gary S. Austin on 04/29/2021. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES BOWELL,
Plaintiff,

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vs.

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F. MONTOYA, et al.,
Defendants.

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1:17-CV-00605-NONE-GSA-PC
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL
(ECF NO. 92.)
ORDER DENYING PLAINTIFF’S
MOTIONS FOR RECONSIDERATION
(ECF NOS. 92, 94, 97, 98.)

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I.

BACKGROUND

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James Bowell (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis

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with this civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s

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First Amended Complaint, filed on May 3, 2018, against defendants Montoya and Carter for

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violation of due process under the Fourteenth Amendment, and against defendants Killmer and

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Lopez for conspiracy to place Plaintiff at risk of serious harm and failure to protect Plaintiff under

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the Eighth Amendment. (ECF No. 16.)1

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On October 25, 2018, the court issued an order dismissing all other claims and defendants from
this case, for Plaintiff’s failure to state a claim. (ECF No. 20.)

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On February 3, 2021 (ECF No. 92), February 25, 2021 (ECF No. 94), and March 5, 2021

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(ECF No. 97), Plaintiff requested reconsideration of the court’s order (ECF No. 89) issued on

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January 19, 2021, which denied Plaintiff’s motion for stay of the deadlines in the court’s

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scheduling order (ECF No. 63). Plaintiff also filed a motion for appointment of counsel (ECF

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No. 92).

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II.

APPOINTMENT OF COUNSEL

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On February 3, 2021, Plaintiff filed a motion for appointment of counsel. Plaintiff does

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not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d

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1520, 1525 (9th Cir. 1997), and the Court cannot require an attorney to represent Plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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

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Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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

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

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

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of 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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Plaintiff argues that he needs a Law Firm Team Of Lawyers working on his behalf to

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conduct investigations and prepare for a civil jury trial, with law degrees capable of experience

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to resolve this controversy with evidentiary documents. He seeks further discovery motions,

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points of law, and disclosures of personal injuries involving wrongdoing of defense counsel

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“taking advantage of an old man wrongfully incarcerated for over 30 years being held hostage

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unconstitutionally, unlawfully, via CDCR defendants in Case 2:18-cv-02726-MCE-DMC (U.S.

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District Court in Sacramento) pending motion to reopen dated January 13, 2021.” (ECF No. 92

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at 2.) These conditions do not make Plaintiff’s cases exceptional under the law.

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claims for retaliation, due process, and failure to protect Plaintiff are not complex, and Plaintiff

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can adequately articulate his claims. Therefore, Plaintiff’s request for appointment of counsel

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shall be denied, without prejudice to renewal of the motion at a later stage of the proceedings.
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Plaintiff’s

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III.

MOTION FOR RECONSIDERATION

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable

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diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3)

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fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an

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opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R.

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Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest

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injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v.

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Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The

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moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id.

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(internal quotation marks and citation omitted). In seeking reconsideration of an order, Local

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Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are claimed

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to exist which did not exist or were not shown upon such prior motion, or what other grounds

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exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the district court is presented with newly discovered evidence, committed

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clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals,

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Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks

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and citations omitted, and “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation . . . ” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d

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1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly

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convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist.

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v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in

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

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Plaintiff requests the court to reconsider the denial of his motion to stay the deadlines in

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the scheduling order for this case issued on July 10, 2020. On July 10, 2020, on Defendants’
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motion, the court extended the discovery deadline to November 24, 2020, and the dispositive

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motions deadline to January 24, 2021. (ECF No. 74.) These deadlines have now expired.

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On November 25, 2020, Plaintiff filed a motion for a stay of the proceedings in this action.

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(ECF No. 85.) On December 15, 2020, Defendants filed an opposition to the motion. (ECF No.

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86.) On January 5, 2021, Plaintiff filed a reply to the opposition. (ECF No. 87.) Plaintiff sought

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a stay of the proceedings in this case for up to 180 days until he is released from custody following

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a California Supreme Court ruling on his state court habeas petition, which was expected in 90

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days. Plaintiff anticipates that after the favorable ruling on his habeas petition he will be released

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from custody at a CDCR Parole Board Hearing. Upon release, Plaintiff plans to retain counsel

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to assist with litigation of this case. Plaintiff requested a stay of this case until such time as he

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had retained counsel.

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On January 19, 2021, the court denied Plaintiff’s motion for stay finding no good cause

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to modify the scheduling order and impose a stay of this action, or to re-open discovery after the

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parties had nine months to conduct discovery. (ECF No. 89.) The court found that Plaintiff had

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not explained why his ability to retain counsel will improve when he is released from custody,

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or how, even with the exercise of due diligence he was unable to meet the requirements of the

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scheduling order.

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Plaintiff requests reconsideration of the court’s order, arguing that he is entitled to 90

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days in which to investigate defendants and their counsel for a fair judicial civil trial. First,

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Plaintiff alleges that defense counsel told outright lies to win by fraud, and direct testimony by

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his witnesses will reveal fraud. Second, Plaintiff argues that he requires a 90-day stay of

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discovery because he intends to hire a Law Firm Team of Lawyers in the San Fernando Valley

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when he is released from custody. Third, Plaintiff requests a stay until a Supreme Court case,

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Miller v. French, is decided, establishing prerequisites for a stay. Fourth, Plaintiff contends that

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he needs a team of lawyer’s experts to deal with the internal mechanics of the California prison

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system’s abuse of power, able to investigate defendants thoroughly and file criminal charges.

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Finally, Plaintiff states that he requires a 90-day stay because he expects a new abstract of

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judgment voiding the 25 year to life enhancement within 30 days if not sooner, giving him time

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to find a law firm.

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Plaintiff has not set forth facts or law of a strongly convincing nature in his motions for

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reconsideration to induce the Court to reverse its prior decision. Therefore, the motions for

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reconsideration shall be denied. Moreover, no further objections or motions for reconsideration

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concerning Plaintiff’s motion for stay of the proceedings in this action, or to modify the deadlines

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in the scheduling order, shall be considered by the Court.

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IV.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that:
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DENIED, without prejudice;
2.

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Plaintiff’s motion for appointment of counsel, filed on February 3, 2021, is

Plaintiff’s motions for reconsideration, filed on February 3, 2021, February 25,
2021, and March 5, 2021, are DENIED; and

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No further objections or motions for reconsideration concerning Plaintiff’s

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motion for stay of the proceedings in this action or to modify the deadlines in the

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scheduling order shall be considered by the Court.

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IT IS SO ORDERED.
Dated:

April 29, 2021

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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