Gipbsin v. Kernan, et al

Filing 298

ORDER signed by Magistrate Judge Deborah Barnes on 1/22/2021 DENYING without prejudice as untimely plaintiff's 295 motion to vacate; and DENYING plaintiff's 297 motion for appointment of counsel. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CLARENCE A. GIPBSIN,

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Plaintiff,

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v.

No. 2:12-cv-0556 KJM DB P

ORDER

SCOTT KERNAN, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Plaintiff claims defendants violated his rights by failing to transfer him to a

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mental health care facility pursuant to a court order. Presently before the court is plaintiff’s

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motion to vacate the findings and recommendations (ECF No. 295) and his motion to appoint

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counsel (ECF No. 297).

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I.

Motion to Vacate the Findings and Recommendations
Plaintiff requests that the findings and recommendations be vacated pursuant to Federal

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Rule of Civil Procedure 59. (ECF No. 295.) On December 30, 2020 the undersigned issued

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findings and recommendations recommending that defendants’ summary judgment motion be

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granted. (ECF No. 293.) The findings and recommendations are currently pending before the

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district judge assigned to this action. Rule 59 states that a party may move for a new trial or to

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alter or amend a judgment. Fed. R. Civ. P. 59. However, because judgment has not been entered,

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relief under Rule 59 is inapplicable. Accordingly, the undersigned finds that plaintiff’s motion
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should more properly be construed as a motion for reconsideration under Federal Rule of Civil

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Procedure 60.

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Rule 60 reconsideration is generally appropriate in three instances: (1) when there has

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been an intervening change of controlling law; (2) new evidence has come to light; or (3) when

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necessary to correct a clear error or prevent manifest injustice. School District No. 1J v. ACandS,

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Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). Plaintiff has largely raised the same arguments in his

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motion to vacate that he raised in his opposition. Additionally, the district judge assigned to this

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action has not yet ruled on the findings and recommendations. Therefore, the court finds that

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plaintiff’s motion to vacate is premature. Accordingly, the court will deny the motion without

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prejudice to its renewal after the district court has issued a ruling on the pending findings and

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recommendations.

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II.

Motion to Appoint Counsel

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Plaintiff has again requested the appointment of counsel. (ECF No. 297.) In support of

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his motion he argues that counsel should be appointed because he cannot afford to hire counsel.

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(Id.)

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The United States Supreme Court has ruled that district courts lack authority to require

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counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490

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U.S. 296, 298 (1989). In certain exceptional circumstances, the district court may request the

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

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1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,

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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.

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In the present case, the court does not find the required exceptional circumstances.

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Plaintiff’s inability to afford counsel has no bearing on either his likelihood of success on the

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merits or his ability to articulate his claims pro se. Accordingly, the court will deny his motion to

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appoint counsel.

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III.

Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to vacate (ECF No. 295) is denied without prejudice as untimely;

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and

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2. Plaintiff’s motion for the appointment of counsel (ECF No. 297) is denied.
Dated: January 22, 2021

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DB:12

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DB:1/Orders/Prisoner/Civil.Rights/gipb0556.31(10)

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