Davenport v. Lee et al

Filing 85

ORDER signed by Magistrate Judge Edmund F. Brennan on 08/16/12 denying plaintiff's motions 81 , 83 , 84 . (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RONALD DAVENPORT,
Plaintiff,

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vs.

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No. 2:09-cv-3091 GEB EFB P

BEN LEE, et al.,
Defendants.

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ORDER
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On July 24, 2012, the undersigned recommended that this action be dismissed

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because plaintiff failed to comply with court orders directing him to respond to defendant

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Sahota’s motion for summary judgment, and for failure to prosecute this action. Dckt. No. 79;

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see also Dckt. No. 74 (warning plaintiff that failure to respond to defendant’s motion could

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result in a recommendation that this action be dismissed). Thereafter, plaintiff filed the

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following: (1) a motion to “vacate” the July 24, 2012 findings and recommendations pursuant to

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Rule 59(e) of the Federal Rules of Civil Procedure; (2) a motion for appointment of counsel; and

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(3) an application to proceed in forma pauperis.

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Pursuant to Rule 59(e), a motion to alter or amend a judgment must be filed no later than

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28 days after entry of judgment. Fed. R. Civ. P. 59(e). Plaintiff’s motion must be denied

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because judgment has not been entered in this case. To the extent plaintiff is seeking

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reconsideration by the undersigned of the July 24, 2012 findings and recommendations, that

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motion must also be denied. Reconsideration is appropriate if the court (1) is presented with

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newly discovered evidence, (2) committed clear error or the initial decision was manifestly

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unjust, or (3) if there is an intervening change in controlling law. Sch. Dist. No. 1J v. ACandS,

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Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Local Rule 230(j) requires that a motion for

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reconsideration state “what new or different facts or circumstances are claimed to exist which

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did not exist or were not shown upon such prior motion, or what other grounds exist for the

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motion,” and “why the facts or circumstances were not shown at the time of the prior motion.”

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E.D. Cal., Local Rule 230(j)(3)-(4). Plaintiff’s motion, which consists of two sentences, does

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not describe new or different facts or circumstances that would warrant reconsideration of the

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undersigned’s findings and recommendations.

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Plaintiff also requests that the court appoint counsel. District courts lack authority to

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require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States

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Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an

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attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v.

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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36

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(9th Cir. 1990). When determining whether “exceptional circumstances” exist, the court must

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consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate

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his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560

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F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the court finds there are no

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exceptional circumstances in this case.

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Finally, plaintiff seeks leave to proceed in forma pauperis. On June 23, 2012, the court

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granted plaintiff’s request for leave to proceed in forma pauperis. Dckt. No. 5. Accordingly,

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plaintiff’s request must be denied as moot.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions, Dckt. Nos. 81, 83, and

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84, are denied.

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DATED: August 16, 2012.

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