Madsen v. Risenhoover et al

Filing 11

ORDER by Judge Saundra Brown Armstrong DENYING 6 Motion to Appoint Counsel; GRANTING 7 Motion for Leave to File Motion for Reconsideration, GRANTING 8 Motion for Leave to File Motion for Reconsideration. This action is REOPENED and the 12/18/09 Order is VACATED and the Complaint filed on 11/17/09 is REINSTATED. (lrc, COURT STAFF) (Filed on 1/27/2010) Modified on 1/28/2010 (jlm, COURT STAFF). Modified on 1/28/2010 (jlm, COURT STAFF).

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1 2 3 4 5 6 7 8 9 10 United 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 v. RICK MADSEN, Plaintiff, IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA No. C 09-05457 SBA (PR) ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION; DENYING HIS REQUEST FOR APPOINTMENT OF COUNSEL; AND REOPENING CASE (Docket nos. 6, 7, 8) SUE E. RISENHOOVER, et al., Defendants. _______________________________________/ This civil rights action was dismissed without prejudice by the Court on December 18, 2009. The Court concluded that dismissal was required because Plaintiff failed to submit a timely application for leave to proceed in forma pauperis (IFP) by the December 17, 2009 deadline. Plaintiff now seeks reconsideration of the dismissal by filing a document entitled "Plaintiff Seeks Leave and Reconsideration of this Court's Order dated December 18, 2009," which the Court construes as a motion for reconsideration under Rule 60(b) of the Federal Rules of Civil Procedure. Where the district court's ruling has resulted in a final judgment or order, a motion for reconsideration may be filed under Rule 60(b). Rule 60(b) provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered before the court's decision; (3) fraud by the adverse party; (4) the judgment is void; (5) the judgment has been satisfied; (6) any other reason justifying relief. Fed. R. Civ. P. 60(b); School Dist. 1J v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Plaintiff contends that he submitted his completed IFP application to prison authorities on December 8, 2009. The record shows that Plaintiff's IFP application along with his certificate of funds and prison trust account statement were received by the Clerk of the Court on December 17, 2009; however, these documents were not entered into the Court's electronic database until December 28, 2009 -- ten days after the aforementioned dismissal order was signed and issued. Because the record shows that Plaintiff's IFP application was received by the December 17, 2009 deadline, Plaintiff's motion for reconsideration (docket nos. 7, 8) is GRANTED. 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 Plaintiff has also filed a requests for appointment of counsel. The Court is unable to assess at this time whether exceptional circumstances exist which would warrant seeking volunteer counsel to accept a pro bono appointment in this case. The proceedings are at an early stage and it is premature for the Court to determine Plaintiff's likelihood of success on the merits. Moreover, Plaintiff has been able to articulate his claims adequately pro se in light of the complexity of the issues involved. See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Accordingly, Plaintiff's request for appointment of counsel (docket no. 6) is DENIED at this time. This does not mean, however, that the Court will not consider appointment of counsel at a later juncture in the proceedings, that is, 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, then it can seek volunteer counsel to agree to represent Plaintiff pro bono in this action. CONCLUSION 1. Plaintiff's motion for reconsideration (docket nos. 7, 8) is GRANTED. The Clerk shall REOPEN this action, VACATE the Court's December 18, 2009 Order of Dismissal Without Prejudice, and REINSTATE the complaint filed on November 17, 2009. The Court will review Plaintiff's complaint in a separate written Order. 2. 3. Plaintiff's request for appointment of counsel (docket no. 6) is DENIED. This Order terminates Docket nos. 6, 7 and 8. IT IS SO ORDERED. DATED: 1/25/10 SAUNDRA BROWN ARMSTRONG United States District Judge P:\PRO-SE\SBA\CR.09\Madsen5457.GrantRECO2 -DISIFP.frm N 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 P:\PRO-SE\SBA\CR.09\Madsen5457.GrantRECO3 -DISIFP.frm N Rick Madsen E10400 5905 Lake Earl Drive Crescent City, CA 95531 Dated: January 27, 2010 Richard W. Wieking, Clerk By: LISA R CLARK, 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 January 27, 2010, 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. v. SUE E. RISENHOOVER et al, Defendant. / RICK MADSEN, Plaintiff, Case Number: CV09-05457 SBA CERTIFICATE OF SERVICE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

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