Evans v. Fox et al

Filing 100

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 07/17/24 RECOMMENDING that 97 Plaintiff's Motion to Appoint Counsel and Motion to Reopen Case be denied. Referred to Judge Dale A. Drozd; Objections to F&Rs due within 14 days. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GENE EVANS,

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Case No. 2:16-cv-01997-DAD-JDP (PC)
Plaintiff,

v.
K. LASSITER, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF’S MOTIONS TO
APPOINT COUNSEL AND REOPEN THIS
CASE BE DENIED
ECF No. 97
OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this closed civil

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rights action under 42 U.S.C. § 1983. Plaintiff alleged that defendant correctional officers

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Montemayor, Wong, and Lassiter violated his Eighth Amendment rights by verbally harassing

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and threatening him. Defendants moved for summary judgment. ECF No. 84. I recommended a

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grant of summary judgment in defendants’ favor, finding that there was no genuine issue of

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material fact regarding whether defendants’ violated plaintiff’s Eighth Amendment rights. ECF

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No. 90. The district court adopted that finding in full and entered judgment on February 23,

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2024. ECF Nos. 95 & 96.

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Approximately one month later, plaintiff filed a motion for counsel and to reopen this

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action. ECF No. 97. Defendants filed an opposition. ECF No. 98. Having considered the record

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and the briefs, I will deny plaintiff’s motion for counsel and recommend that his motion to reopen

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be denied.

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Under Rule 60(b), the court may grant reconsideration of a final judgment and any order

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based on: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence

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which, with reasonable diligence, could not have been discovered within ten days of entry of

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judgment; and (3) fraud, misrepresentation, or misconduct of an opposing party. See Fed. R. Civ.

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P. 60(b)(1)-(3). A motion for reconsideration on any of these grounds must be brought within

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one year of entry of judgment or the order being challenged. See Fed. R. Civ. P. 60(c)(1). Under

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Rule 60(b), the court may also grant reconsideration if: (1) the judgment is void; (2) the

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judgement has been satisfied, released, or discharged, an earlier judgment has been reversed or

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vacated, or applying the judgment prospectively is no longer equitable; and (3) any other reason

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that justifies relief. See Fed. R. Civ. P. 60(b)(4)-(6). A motion for reconsideration on any of

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these grounds must be brought “within a reasonable time.” Fed. R. Civ. P. 60(c)(1).

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Plaintiff argues that defendants did in fact violate his Eighth Amendment rights by

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verbally harassing him, that he has exhausted his administrative remedies, and defendants are not

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entitled to qualified immunity.

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Plaintiff has not identified any authority providing a basis for reopening this case, and I

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find no basis in the record to do so. His motion fails to present newly discovered evidence that

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would change the outcome of the court’s ruling, fails to show that the court committed clear error,

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and fails to establish fraud, misrepresentation, or misconduct of either the opposing party or of

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this court. The interests of finality and the conservation of judicial resources also do not warrant

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the use of the extraordinary remedy plaintiff seeks. See United States v. Alpine Land & Reservoir

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Co., 984 F.2d 1047, 1049 (9th Cir. 1993). “Mere dissatisfaction with court’s order or belief that

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the court is wrong in its decision are not adequate grounds for relief under Rule 60(b)(6).” Brown

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v. Warden, No 2:10-cv-2040-MCE-KJN P, 2011 WL 2559428, at *2 (E.D. Cal. June 27, 2011).

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Accordingly, plaintiff has failed to establish any basis for relief under Rule 60(b) from the court’s

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dismissal order and judgment and thus I recommend that his motion be denied.
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Plaintiff does not have a constitutional right to appointed counsel, see Rand v. Rowland,

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113 F.3d 1520, 1525 (9th Cir. 1997), and the court lacks authority to require an attorney to

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represent plaintiff. See Mallard v. U.S. Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). The court can request the voluntary assistance of counsel. See 28 U.S.C. § 1915(e)(1)

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(“The court may request an attorney to represent any person unable to afford counsel”); Rand,

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113 F.3d at 1525. But without a means to compensate counsel, the court will seek volunteer

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counsel only in exceptional circumstances. In determining whether such circumstances exist,

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“the district court must evaluate both the likelihood of success on the merits [and] the ability of

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the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Rand, 113 F.3d at 1525 (internal quotation marks and citations omitted).

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I cannot find that the appointment of counsel is warranted here. This case is closed, and

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judgment was entered in favor of defendants; thus, I necessarily find that plaintiff has not

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succeeded on the merits.
Accordingly, it is hereby ORDERED that plaintiff’s motion for counsel, ECF No. 97, is

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denied.
Further, it is hereby RECOMMENDED that plaintiff’s motion to reopen this action, ECF

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No. 97, be denied.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days of

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service of these findings and recommendations, any party may file written objections with the

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court and serve a copy on all parties. Any such document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed

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within fourteen days of service of the objections. The parties are advised that failure to file

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objections within the specified time may waive the right to appeal the District Court’s order. See

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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IT IS SO ORDERED.

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Dated:

July 17, 2024

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JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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