Tunstall, Jr. v. Virga, et al.

Filing 60

ORDER signed by Magistrate Judge Allison Claire on 06/30/16 denying plaintiff's motion for reconsideration 59 and denying 57 Motion to Appoint Counsel. The clerk of the court is directed to return to plaintiff the documents attached to his 6/13/16 objections 59 . (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT WILLIAM TUNSTALL, JR.,

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No. 2:14-cv-2220 TLN AC (TEMP) P

Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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On June 2, 2016, the undersigned denied plaintiff’s seventh motion for appointment of

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counsel for several reasons, including that his claim of dementia was unsupported by any medical

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records. ECF No. 56. Plaintiff has now filed objections to that order, which the court construes

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as a motion for reconsideration. ECF No. 59. Plaintiff has also filed his eighth motion for

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appointment of counsel. ECF No. 57. In both of these filings, plaintiff again claims that he has

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dementia and “HORRIBLE MEMORY” caused by two brain surgeries, and he submits medical

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documentation in support.1

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When filing a motion for reconsideration, Local Rule 230(j) requires a party to show the

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“new or different facts or circumstances claimed to exist which did not exist or were not shown

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upon such prior motion, or what other grounds exist for the motion.” Motions to reconsider are

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Plaintiff claims that these documents are his only copies of his medical records. Accordingly,
the undersigned will direct the Clerk of Court to return these documents to plaintiff.
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committed to the discretion of the trial court. Combs v. Nick Garin Trucking, 825 F.2d 437, 441

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(D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). To succeed, a

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party must set forth facts or law of a strongly convincing nature to induce the court to reverse its

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prior decision. See, e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665

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(E.D. Cal. 1986), aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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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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The documents attached to plaintiff’s objections include a December 2014 Primary Care

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Provider Progress Note reflecting that plaintiff was to be referred “for a dementia specialist for a

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brain trauma (s/p brain surgery) type dementia.” ECF No. 59 at 14. Having considered this

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document and the two others dating from 2008, the court once again finds that exceptional

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circumstances have not been presented that would require the appointment of counsel. The court

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notes that, notwithstanding his dementia and memory problems, plaintiff is able to file numerous

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motions supported by legal argument, he is able to file objections to court orders, and he is able to

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properly articulate his claims. Thus, plaintiff fails to meet the requirements for granting a motion

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for reconsideration.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s June 13, 2016, motion for reconsideration (ECF No. 59) is denied;
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2. Plaintiff’s June 10, 2016, motion for the appointment of counsel (ECF No. 57) is
denied; and
3. The Clerk of Court is directed to return to plaintiff the documents attached to his June
13, 2016, objections (ECF No. 59).
DATED: June 30, 2016

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