Hardy v. Davis et al

Filing 122

ORDER signed by Magistrate Judge Deborah Barnes on 9/20/17 ORDERING that Plaintiff's MOTION for Reconsideration 115 and MOTION for Appointment of Counsel 117 are DENIED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KRISTIN HARDY,

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No. 2:13-cv-0726 JAM DB

Plaintiff,

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v.

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C DAVIS, et al.,

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ORDER
Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights

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action under 42 U.S.C. § 1983 alleging he was unreasonably strip-searched and subjected to

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excessive force, in violation of his Fourth and Eighth Amendment rights.

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Before the close of discovery, plaintiff filed two discovery motions, seeking to compel

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better answers to interrogatories (ECF No. 67) and seeking to stay a deposition scheduled by

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defendants (ECF No. 68). After the close of discovery, plaintiff filed two more discovery

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motions, seeking to submit additional interrogatories to defendants and to extend the discovery

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deadline (ECF No. 76) and seeking to compel better responses to interrogatories (ECF No. 77).

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On February 1, 2017, the undersigned ordered that all four discovery motions be denied. (ECF

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No. 100.) Plaintiff now moves for reconsideration of that order. (ECF No. 115.) Additionally,

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plaintiff moves for appointment of counsel because he does not have experience presenting a case

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at trial. (ECF No. 117.)
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I.

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Motion for Reconsideration
The Court has discretion to reconsider and vacate a prior order. Barber v. Hawaii, 42 F.3d

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1185, 1198 (9th Cir. 1994); United States v. Nutri-cology, Inc., 982 F.2d 394, 396 (9th Cir.

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1992). Motions for reconsideration are disfavored, however, and are not the place for parties to

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make new arguments not raised in their original briefs. Northwest Acceptance Corp. v.

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Lynnwood Equip., Inc., 841 F.2d 918, 925-6 (9th Cir. 1988). Nor is reconsideration to be used to

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ask the Court to rethink what it has already thought. United States v. Rezzonico, 32 F. Supp. 2d

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1112, 1116 (D. Ariz. 1998). “A party seeking reconsideration must show more than a

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disagreement with the Court's decision, and recapitulation of the cases and arguments considered

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by the court before rendering its original decision fails to carry the moving party's burden.” U.S.

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v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D.Cal.2001).

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Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick

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Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th

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Cir. 1983), en banc. To succeed, a party must set forth facts or law of a strongly convincing

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

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

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other grounds 828 F.2d 514 (9th Cir. 1987). When filing a motion for reconsideration, Local Rule

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78-230(j) requires a party to show the “new or different facts or circumstances [] claimed to exist

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

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motion[.]” (emphasis supplied).

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Plaintiff’s motion does not meet the high burden necessary to succeed on a motion for

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reconsideration. Plaintiff’s motion for reconsideration retreads the arguments already made in the

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original motion -- and already rejected by the court. Thus, plaintiff is merely showing

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“disagreement with the Court's decision, and recapitulation of the cases and arguments considered

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by the court before rendering its original decision[.]” Westlands Water Dist., 134 F. Supp. 2d at

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1131.

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Accordingly, plaintiff’s motion for reconsideration (ECF No. 115) should be denied.
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II.

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Motion to Appoint Counsel
Plaintiff moves for appointment of counsel because this case has moved beyond the

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summary judgment stage and is expected to be set for a jury trial. Plaintiff asserts that he would

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be at a significant disadvantage because he has never tried or presented a case to a jury before.

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(ECF No. 117 at 3.)

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District courts lack authority to require counsel to represent indigent prisoners in section

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1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to

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28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v.

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Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). A finding of “exceptional circumstances”

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requires an evaluation of both the likelihood of success on the merits and the ability of the

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plaintiff to articulate his claims on his own in light of the complexity of the legal issues involved.

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See Terrell, 935 F.2d at 1017. Circumstances common to most prisoners, such as lack of legal

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education and limited law library access, do not establish exceptional circumstances that would

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warrant a request for voluntary assistance of counsel.

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Having considered these factors, the court denies plaintiff’s motion to appoint counsel, as

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the basis for the appointment is merely his lack of legal experience. Without the assistance of

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counsel, plaintiff has partially defeated motions for summary judgment, showing that he is

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capable of proceeding without counsel in this matter. (ECF No. 118.)

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III.

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Conclusion
Accordingly, IT IS HEREBY ORDERED that plaintiff’s for reconsideration (ECF No.

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115) is DENIED and plaintiff’s motion for the appointment of counsel (ECF No. 117) is

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DENIED.

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DATED: September 20, 2017

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/s/ DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE

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