Flowers v. Alameda County Sheriffs et al

Filing 62

ORDER by Judge Claudia Wilken DENYING PLAINTIFF'S 60 MOTION FOR RECONSIDERATION AS MOOT. (ndr, COURT STAFF) (Filed on 3/31/2011)

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Flowers v. Alameda County Sheriffs et al Doc. 62 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 Before the Court is Plaintiff's motion for reconsideration of 17 the Court's Order denying appointment of counsel. 18 Rule 60(b) provides for reconsideration only upon a showing 19 of: (1) mistake, inadvertence, surprise or excusable neglect; 20 (2) newly discovered evidence which by due diligence could not have 21 been discovered before the court's decision; (3) fraud by the 22 adverse party; (4) a void judgment; (5) a satisfied or discharged 23 judgment; or (6) any other reason justifying relief. 24 Civ. P. 60(b). 25 grounds justifying relief are extraordinary. 26 with the Court's order, or belief that the Court is wrong in its 27 decision, are not grounds for relief under subparagraph (6) or any 28 other provision of Rule 60(b). "'[T]he major grounds that justify Mere dissatisfaction Subparagraph (6) requires a showing that the See Fed. R. v. ALAMEDA COUNTY SHERIFF, et al., Defendants. / JOSEPH J. FLOWERS, Plaintiff, No. C 08-04179 CW (PR) ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION AS MOOT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reconsideration involve an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'" Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (quoting United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir. 1970)). Plaintiff presents no grounds that warrant reconsideration. As explained in the Court's Order denying appointment of counsel, there is no constitutional right to counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. See Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no constitutional right to counsel in 1983 action), withdrawn in part on other grounds on reh'g en banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The court may ask counsel to represent an indigent litigant under 28 U.S.C. 1915 only in "exceptional circumstances," the determination of which requires an evaluation of both (1) the likelihood of success on the merits, and (2) the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. See id. at 1525; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Both of these factors must be viewed together before reaching a decision on a request for counsel under 1915. See id. At present, the Court is unable to assess whether exceptional circumstances exist which would warrant seeking volunteer counsel to accept a pro bono appointment. The proceedings are at an early stage and it is premature for the Court to determine Plaintiff's likelihood of 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 success on the merits. Accordingly, Plaintiff's motion for The Court will consider reconsideration is DENIED as moot. appointment of counsel later in the proceedings, after Defendants have filed their dispositive motion and the Court has a better understanding of the procedural and substantive matters at issue. Therefore, Plaintiff may file a renewed motion for the appointment of counsel after Defendants' dispositive motion has been filed. If the Court decides that appointment of counsel is warranted at that time, it will seek volunteer counsel to agree to represent Plaintiff pro bono. This Order terminates Docket no. 60. IT IS SO ORDERED. Dated: 3/31/2011 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE 3 1 2 3 JOSEPH J. FLOWERS, 4 Plaintiff, 5 v. 6 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA Case Number: CV08-04179 CW CERTIFICATE OF SERVICE ALAMEDA COUNTY SHERIFF et al, 7 Defendant. 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Joseph J. Flowers F82065 DVI Prison P.O. Box 600 Tracy, CA 95378 Dated: March 31, 2011 Richard W. Wieking, Clerk By: Nikki Riley, Deputy Clerk / I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on March 31, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

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