Howard v. Williamson et al

Filing 51

ORDER signed by District Judge Troy L. Nunley on 3/13/2019 DENYING both 49 Motion for Reconsideration, Motion to Appoint Counsel, and 50 Motion to Appoint Counsel. The Clerk of the Court is directed to close this case. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GREGORY E. HOWARD,

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Plaintiff,

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v.

No. 2:16-cv-01200-TLN-KJN

ORDER

S. WILLIAMSON, et al.,

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Defendants.

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This matter is before the Court on Plaintiff Gregory E. Howard’s (“Plaintiff”) Motion for

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Reconsideration (ECF No. 49) and Motion to Appoint Counsel (ECF No. 50.) On November 7,

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2017, the magistrate judge filed findings and recommendations herein, which were served on the

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parties and contained notice that any objections to the findings and recommendations were to be

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filed within fourteen days. (ECF No. 36.) The magistrate judge’s order determined that

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Plaintiff’s claims were barred by the applicable statute of limitations. (ECF No. 36 at 1.)

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Plaintiff did not file any objections to the findings and recommendations. On March 30, 2018,

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this Court adopted the findings and recommendations, and granted Defendants’ Motion for

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Summary Judgment. (ECF No. 43.) The case was accordingly closed. Plaintiff now brings the

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instant motions. For the reasons set forth below, both Plaintiff’s motion for reconsideration (ECF

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No. 49), and his motion to appoint counsel (ECF No. 50), are DENIED.

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I.

MOTION FOR RECONSIDERATION

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On August 29, 2018, Plaintiff filed a document titled “Objection for the Reconsideration

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for the Response to Defendants[’] Requests.” (ECF No. 45 at 1.) The Court denied this request

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pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. (ECF No. 46.) On January 14,

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2019, Plaintiff filed a renewed motion for reconsideration citing “newly discovered evidence.”

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(ECF No. 49 at 2.)

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Rule 59(e) states, “[a] motion to alter or amend a judgment must be filed no later than 28

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days after the entry of the judgment.” Fed. R. Civ. P. 59(e). The Court filed its Order (ECF No.

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49) on October 23, 2018. Plaintiff filed the instant motion (ECF No. 49) on January 14, 2019,

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nearly three months after the entry of judgment. Therefore, Plaintiff’s motion for reconsideration

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is untimely.

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Moreover, “[u]nder Rule 59(e), a motion for reconsideration should not be granted, absent

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highly unusual circumstances, unless the district court is presented with newly discovered

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evidence, committed clear error, or if there is an intervening change in the controlling law.” 389

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Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Plaintiff attached several

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exhibits to his motion, including the decisions on several administrative appeals. (ECF No. 49 at

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9.) Plaintiff’s attached exhibits fail to provide any information or new evidence that will change

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the outcome of this case.

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The Court has carefully reviewed the entire file, including Plaintiff’s request (ECF No.

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49). The Court still finds the findings and recommendations to be supported by the record and by

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proper analysis. Simply put, Plaintiff’s motion is untimely, and the Rule 59(e) standard is not met

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here. Consequently, this motion is denied.

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II.

MOTION TO APPOINT COUNSEL

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On January 14, 2019, Plaintiff filed a motion to appoint counsel. (ECF No. 50.) Plaintiff

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previously filed a motion to appoint counsel (ECF No. 27), which the magistrate judge denied

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(ECF No. 29).

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District courts lack the requisite authority to require counsel to represent indigent

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prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989).
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In exceptional circumstances, a court may request an attorney to voluntarily represent such

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

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether

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“exceptional circumstances” exist, the court must consider a plaintiff’s “likelihood of success on

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the merits as well as the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

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(finding district court did not abuse discretion in declining to appoint counsel). The burden of

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demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most

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prisoners, such as lack of legal education and limited law library access, do not establish

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exceptional circumstances that warrant a request for voluntary assistance of counsel.
In evaluating the Palmer factors, this Court finds that Plaintiff has failed to establish

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circumstances warranting the appointment of counsel. Therefore, Plaintiff’s motion to appoint

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counsel is denied.

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III.

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Both Plaintiff’s motion for reconsideration (ECF No. 49) and motion to appoint counsel

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CONCLUSION

(ECF No. 50) are hereby DENIED. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated: March 13, 2019

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Troy L. Nunley
United States District Judge

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