(PC) Turner v. Ullery et al
Filing
89
ORDER signed by Magistrate Judge Chi Soo Kim on 06/05/2024 DENYING 86 Motion for Reconsideration as untimely and to the extent Plaintiff renews a Motion for Appointment of Counsel, the Motion is DENIED without prejudice. (Nair, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ANTHONY D.L. TURNER,
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No. 2:22-cv-0002 TLN CSK P
Plaintiff,
v.
ORDER
MICHAEL ULLERY, et al.,
Defendant.
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On April 25, 2024, plaintiff filed a motion for reconsideration of the order denying
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appointment of counsel. (ECF No. 86.) The Court denies the motion as discussed below.
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Untimely Motion for Reconsideration
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Plaintiff did not identify what order he wants this Court to reconsider. The record reflects
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that the only motion for appointment of counsel was filed by plaintiff on November 23, 2022, and
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was denied on December 1, 2022. (ECF Nos. 48, 51.) Local Rule 303(b) states “rulings by
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Magistrate Judges . . . shall be final if no reconsideration thereof is sought from the Court within
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fourteen days . . . from the date of service of the ruling on the parties.” Id. Plaintiff’s motion for
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reconsideration of the assigned magistrate judge’s order of December 1, 2022, is therefore
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untimely and is denied.
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Renewed Motion for Counsel
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To the extent plaintiff renews a motion for appointment of counsel, the Court finds the
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motion unavailing at this juncture. First, the case is closed. Judgment was entered on September
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29, 2023. (ECF No. 81.) Second, on April 19, 2024, the Court recommended that plaintiff’s
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motion to reopen this action be denied. (ECF No. 85.) Plaintiff was recently granted an
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extension of time to file objections. (ECF No. 88.)
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Third, district courts lack authority to require counsel to represent indigent prisoners in
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section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
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exceptional circumstances, the court may request an attorney to voluntarily represent such a
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plaintiff. 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 plaintiff’s likelihood of success on the
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merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity
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of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court
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did not abuse discretion in declining to appoint counsel). The burden of demonstrating
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exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such
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as lack of legal education and limited law library access, do not establish exceptional
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circumstances that warrant a request for voluntary assistance of counsel. Having considered the
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factors under Palmer, the court finds that plaintiff failed to meet his burden of demonstrating
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exceptional circumstances warranting the appointment of counsel at this time.
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For the above reasons, plaintiff’s motion for appointment of counsel is denied without
prejudice.
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Therefore, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for reconsideration (ECF No. 86) is denied as untimely; and
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2. To the extent plaintiff renews a motion for appointment of counsel, the motion (ECF
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No. 86) is denied without prejudice.
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Dated: June 5, 2024
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/1/turn0002.rec
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