Herrera v. Statti

Filing 149

ORDER signed by Chief Judge Morrison C. England, Jr on 09/03/14 plaintiff's motions for reconsideration 81 , 116 , and 125 are denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERTO HERRERA,

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No. 2:10-cv-1154 MCE DAD P

Plaintiff,

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v.

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P. STATTI, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action. Pending before the

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Court are three separate filings from Plaintiff in which he seeks reconsideration of the Court’s

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order that denied his requests for appointment of counsel and granted Defendants’ motion to

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dismiss his excessive use of force claims due to his failure to exhaust his administrative remedies

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prior to filing suit as required.
“[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.” Kona Enterprises v. Estate

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of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Using a motion for reconsideration to reargue the

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points the court rejected in the original order is improper. American Ironworks & Erectors v.

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North American Construction Corporation, 248 F.3d 892, 899 (9th Cir. 2001).

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A party cannot have relief merely because he or she is unhappy with the judgment. See Khan v.

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Fasano, 194 F. Supp. 2d 1134, 1136 (S.D. Cal. 2001).

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The Court has considered Plaintiff’s motions for reconsideration and will deny them. As

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to Plaintiff’s request for reconsideration of the Court’s Order denying his appointment of counsel,

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as the Court previously advised plaintiff, district courts do not have authority to require counsel to

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represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296,

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298 (1989). In certain exceptional circumstances, the district court may request the voluntary

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assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The test for

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exceptional circumstances requires the court to evaluate the Plaintiff’s likelihood of success on

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the merits and the ability of the Plaintiff to articulate his claims pro se in light of the complexity

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of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986);

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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983).

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In this case, the Court does not find the required exceptional circumstances that warrant

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solicitation and appointment of counsel. The instant case does not present extraordinary legal or

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factual complexity, and Plaintiff has shown he is capable of articulating his claims without

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counsel. Moreover, at this juncture of the case, Plaintiff is proceeding solely on a straightforward

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medical deliberate indifference claim against one defendant. If this case proceeds to trial in the

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future, Plaintiff may renew his request for appointment of counsel.

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The Court now turns to Plaintiff’s request for reconsideration of the Court’s Order

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granting Defendants’ Motion to Dismiss Plaintiff’s excessive use of force claims for failure to

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exhaust administrative remedies. Therein Plaintiff argues that exhaustion of administrative

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remedies would have been futile, and in any event, excessive use of force is not a “prison

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condition” that requires exhaustion. Plaintiff is advised that he is relying on outdated case law in

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making these arguments and that the United States Supreme Court has rejected both. See Porter

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v. Nussle, 534 U.S. 516, 532 (2002) (the exhaustion requirement “applies to all inmate suits about

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prison life, whether they involve general circumstances or particular episodes, and whether they

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allege excessive force or some other wrong.”); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)
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(“we stress the point . . . that we will not read futility or other exceptions into statutory exhaustion

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requirements where Congress has provided otherwise.”). Plaintiff’s remaining contentions are

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also without merit.

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Accordingly, for the reasons discussed herein, Plaintiff’s Motions for Reconsideration
(Doc. Nos. 81, 116 & 125) are DENIED.
IT IS SO ORDERD.
Dated: September 3, 2014

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