Johnson v. Beard

Filing 206

ORDER signed by District Judge Troy L. Nunley on 7/18/2022 PARTIALLY GRANTING 184 Motion; VACATING 180 Order; DENYING 182 Motion to Dismiss without prejudice; DENYING 168 Motion to Appoint Counsel; ADOPTING 159 Findings and Recommendation s in full; DENYING 144 Motion for Default Judgment with prejudice as to Defendant K. Collinsworth and without prejudice as to Defendant Binoye Naku; GRANTING 140 Motion to Set Aside Clerk's Default; SETTING ASIDE 137 Clerk's Default; and DIRECTING Defendant Collinsworth to file aresponse to 54 Third Amended Complaint within 7 days. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL DAVID JOHNSON,

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Plaintiff,

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v.

No. 2:15-cv-01313-TLN-KJN

ORDER

J.A. BEARD, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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While the Court was reviewing Plaintiff’s motion for extension of time to file objections

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to the August 9, 2021 findings and recommendations, (ECF No. 165), Plaintiff filed objections,

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(ECF No. 168). Thereafter, Plaintiff’s request for extension of time was granted, (ECF No. 169),

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and Plaintiff then filed a request for interlocutory appeal and other documents. On January 25,

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2022, the Court adopted the August 9, 2021 findings and recommendations noting that no

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objections were filed after the extension of time was granted. (ECF No. 180.)

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On February 8, 2022, Plaintiff filed a motion under Rule 60(b) of the Federal Rules of

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Civil Procedure, seeking reconsideration due to the Court’s failure to review his objections. (ECF

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No. 184.) Defendant Collinsworth opposes the motion, arguing that relief under 60(b) is not
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appropriate; rather, the Court should amend its prior order and consider Plaintiff’s objections.

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(ECF No. 195.) Plaintiff filed a reply objecting to the setting aside of Defendant Collinsworth’s

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default, and arguing that relief under Rule 60(b) is appropriate. (ECF No. 200.)

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Legal Analysis
“The Court may grant reconsideration under either Federal Rule of Civil Procedure 59(e)

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or 60(b).” Johnson v. United States, No. 2:19-cv-01561-TLN-JDP, 2022 WL 1524602, at *1

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(E.D. Cal. May 13, 2022).

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Rule 59(e) of the Federal Rules of Civil Procedure allows a party to seek an order altering

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or amending the judgment. The Ninth Circuit has stated that “there are four basic grounds upon

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which a Rule 59(e) motion may be granted: (1) if such a motion is necessary to correct manifest

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errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present

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newly discovered or previously unavailable evidence; (3) if such a motion is necessary to prevent

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manifest injustice; or (4) if the amendment is justified by an intervening change in controlling

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law.” Fed. R. Civ. P. 59(e).

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Rule 60(b) provides that:

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(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly
discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b); (3)
fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party; (4) the
judgment is void; (5) the judgment has been satisfied, released or
discharged; it is based on an earlier judgment that has been reversed
or vacated; or applying it prospectively is no longer equitable; or (6)
any other reason that justifies relief.

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Fed. R. Civ. P. 60(b).

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Analysis
Plaintiff is advised that the failure to address his objections was inadvertent. Good cause

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appearing, Plaintiff’s motion is partially granted, and, upon reconsideration, the January 25, 2022

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order is vacated. Because the January 25, 2022 order is vacated, Defendant Collinsworth’s

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motion to dismiss is denied without prejudice to renewal following this review of Plaintiff’s

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objections.

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The Court now considers Plaintiff’s objections to the findings and recommendations. On
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August 9, 2021, the magistrate judge filed findings and recommendations herein which were

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served on all parties and which contained notice to all parties that any objections to the findings

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and recommendations were to be filed within twenty-one days. (ECF No. 159.) Following

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extensions of time, Plaintiff filed objections to the findings and recommendations. (ECF No.

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168.)

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Plaintiff vociferously objects to the setting aside of Defendant Collingsworth’s default and

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the denial of his requests for default judgment. (ECF No. 168 at 2-4, 13-16, 22-24.) However,

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the Ninth Circuit has emphasized that “judgment by default is a drastic step appropriate only in

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extreme circumstances; a case should, whenever possible, be decided on the merits.” United

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States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010)

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(citations omitted). Plaintiff renews his request for an “inquest” hearing, but the Court finds no

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such hearing is required.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this

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Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the

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Court finds the findings and recommendations to be supported by the record and by proper

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analysis.

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In his objections, Plaintiff also sought the appointment of counsel. District courts lack

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

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

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

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v. 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 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v.

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Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to

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appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id.

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Circumstances common to most prisoners, such as lack of legal education and limited law library

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access, do not establish exceptional circumstances that warrant a request for voluntary assistance
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of counsel.
Having considered the factors under Palmer, the Court finds that Plaintiff failed to meet

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his burden of demonstrating exceptional circumstances warranting the appointment of counsel at

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this time.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s February 8, 2022 Motion, (ECF No. 184), is PARTIALLY GRANTED;

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2. Upon reconsideration, the January 25, 2022 Order, (ECF No. 180), is VACATED;

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3. Defendant Collinsworth’s Motion to Dismiss, (ECF No. 182), is DENIED without

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prejudice;

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4. Plaintiff’s Motion for Appointment of Counsel, (ECF No. 168), is DENIED;

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5. The Findings and Recommendations, (ECF No. 159), are adopted in full;

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6. Plaintiff’s Motion for Default Judgment, (ECF No. 144), is DENIED with prejudice as

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to Defendant K. Collinsworth, and without prejudice as to Defendant Binoye Naku;
7. Defendant Collinsworth’s Motion to Set Aside Clerk’s Default, (ECF No. 140), is
GRANTED;
8. The Clerk of the Court is directed to set aside the clerk’s default, entered on April 27,
2021, (ECF No. 137); and
9. Within seven days from the date of this Order, Defendant Collinsworth shall file a

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responsive pleading to the Third Amended Complaint, (ECF No. 54).

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DATED: July 18, 2022

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Troy L. Nunley
United States District Judge

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