Carroll v. State of California et al

Filing 46

ORDER signed by District Judge Troy L. Nunley on 1/8/2018 GRANTING 44 and 45 Requests for Relief From Judgment, DENYING 11 , 21 and 35 Request for Reconsideration. To the extent Plaintiff is separately requesting appointment counsel again (rather than reconsideration of the earlier denials), that request is DENIED. The Clerk of the Court is directed to amend court records to reflect the address for Plaintiff contained in his August 24, 2017 pleading. CASE REOPENED. (Hunt, G)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TREMAYNE DEON CARROLL,

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No. 2:16-cv-01759-TLN-KJN P

Plaintiff,
v.

ORDER

STATE OF CALIFORNIA, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On April 18, 2017, the magistrate judge granted Plaintiff thirty days to file

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an amended complaint. (ECF No. 39.) Thirty days passed and Plaintiff failed to file an amended

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complaint or otherwise respond to the April 18, 2017 Order. Accordingly, on June 1, 2017, the

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magistrate judge recommended that this action be dismissed. (ECF No. 41.) Plaintiff did not file

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objections. On August 7, 2017, the undersigned adopted the findings and recommendations and

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judgment was entered. (ECF Nos. 42 & 43.)

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On August 24, 2017, Plaintiff filed a submission titled “petition for extension of time (45)

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days and reconsideration for appointment of counsel.” (ECF No. 44.) In this submission,

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Plaintiff states that he is in the CDCR Mental Health Delivery System. Plaintiff also alleges that

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he is housed in administrative segregation for non-disciplinary reasons. Plaintiff alleges that he

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has no access to his legal property or the law library.
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The undersigned construes Plaintiff’s August 24, 2017 submission as (i) a request for

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relief from judgment pursuant to Federal Rule of Civil Procedure 60(b) and (ii) a request for

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reconsideration of one or more of the previous denials of Plaintiff’s requests for appointment of

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counsel (ECF Nos. 11, 21 & 35). Plaintiff subsequently filed a submission titled “petition for

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extension of time (60) days [and] request for appointment of counsel.” (ECF No. 45.) The

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undersigned construes this second submission as requesting the same two things as his August 24,

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2017 submission for essentially the same reasons.

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With respect to the first request, the Court finds there is good cause to vacate the August
7, 2017 judgment. Plaintiff will be granted sixty days from the date of this Order to file an
amended complaint.
With respect to the second request, the magistrate judge has denied Plaintiff’s requests for

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appointment of counsel in three separate Orders (ECF Nos. 11, 21 & 35). The magistrate judge

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has accurately stated the law in those Orders, so the Court will not repeat it here. Having

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carefully reviewed those Orders and Plaintiff’s two most recent submissions (ECF Nos. 44 & 45),

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the Court concludes that Plaintiff has not shown any basis why reconsideration is warranted.

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In the abundance of caution, given Plaintiff’s pro se status and the fact he did not include

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the word “reconsideration” in the caption of his most recent submission (ECF No. 45), the

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undersigned has conducted de novo review of Plaintiff’s prior requests for appointment of

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counsel. The undersigned would have reached the same result as the magistrate judge in each

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instance. Simply put, the undersigned finds that Plaintiff has failed to meet his burden of

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demonstrating exceptional circumstances warranting the appointment of counsel at this time.

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Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s requests for relief from judgment (ECF Nos. 44 & 45) are granted; the

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August 7, 2017 judgment (ECF No. 43) is vacated; Plaintiff is granted sixty days from the date of

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this Order to file an amended complaint;

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2. Plaintiff’s request for reconsideration of the magistrate judge’s orders (ECF Nos. 11,
21 & 35) is denied.
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3. To the extent Plaintiff is separately requesting appointment counsel again (rather than
reconsideration of the earlier denials), that request is denied.
4. The Clerk of the Court is directed to amend court records to reflect the address for
Plaintiff contained in his August 24, 2017 pleading.

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Dated: January 8, 2018

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Troy L. Nunley
United States District Judge

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