Chennault v. Morris et al

Filing 53

ORDER Denying 51 Motion for Reconsideration without prejudice. Signed by Judge Barry Ted Moskowitz on 9/16/2014. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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STEVE W. CHENNAULT,
CDCR #D-93021,
Plaintiff,

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Civil
13cv0854 BTM (KSC)
No.
ORDER DENYING PLAINTIFF’S
MOTION FOR
RECONSIDERATION

vs.
MORRIS, et al.,

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(ECF No. 51)
Defendants.

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I.

Procedural History

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Plaintiff, an inmate currently housed at the California Medical Facility, is

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proceeding pro se in this action filed pursuant to 42 U.S.C. § 1983. On June 9, 2014, this

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Court denied Plaintiff’s Motion for Appointment of Counsel, granted Defendants

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Campbell, Ridge, Newton, Seely, Glynn and Lowe’s Motion to Dismiss and denied

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Defendant Morris’ Motion to Dismiss. (ECF No. 39.) Plaintiff was given the option of

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amending his complaint to correct the deficiencies of pleading as to the claims against

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Campbell, Ridge, Newton, Seely, Glynn and Lowe or notify the Court of the intent to

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proceed as to Defendant Morris only. Plaintiff chose to voluntarily dismiss the claims

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against Campbell, Ridge, Newton, Seely, Glynn and Lowe and proceed as to Defendant

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Morris. (ECF No. 45.) The Court ordered Defendant Morris to file a responsive pleading
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13cv0854 BTM (KSC)

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to Plaintiff’s complaint. (ECF No. 48.) Defendants Campbell, Ridge, Newton, Seely,

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Glynn and Lowe were dismissed from this action. (Id.) Thus, the sole remaining claim

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against Defendant Morris relates to Plaintiff’s alleged need for a soft diet.

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Plaintiff has now filed a “Motion to Inform the Court of Plaintiff’s Deteriorating

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Health Condition C.O.P.D. and P.T.S.D.” (ECF No. 51.) In this Motion, Plaintiff

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references his medical condition that is unrelated to his soft diet claims. In addition,

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Plaintiff raises the claims he previously made against Defendant Ridge, who Plaintiff

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voluntarily dismissed from this action, along with new retaliation claims. None of these

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claims are properly before this Court as they have all been dismissed or have not been

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alleged in the operative pleading. Therefore, the Court will not consider these claims but

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will address Plaintiff’s request for reconsideration of the Court’s Order denying

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Plaintiff’s request for appointment of counsel.

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II.

Plaintiff’s Motion

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A.

Standard of Review

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Under Rule 60, a motion for “relief from a final judgment, order or proceeding”

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may be filed within a “reasonable time,” but usually must be filed “no more than a year

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after the entry of the judgment or order or the date of the proceeding.” FED.R.CIV.P.

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60(c).

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inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud;

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or if (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any other

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reason justifying relief. FED.R.CIV. P. 60(b).

Reconsideration under Rule 60 may be granted in the case of: (1) mistake,

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B.

Plaintiff’s claims

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Plaintiff claims that while he has had “inmates, here and there, helping him with

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his legal work,” he “strongly needs assistance of counsel.” (Pl.’s Mot. at 7.) However,

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“[t]here is no constitutional right to appointed counsel in a § 1983 action.” Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (citing Storseth v. Spellman, 654 F.2d

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1349, 1353 (9th Cir. 1981). Federal courts do not have the authority “to make coercive

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13cv0854 BTM (KSC)

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appointments of counsel.” Mallard v. United States District Court, 490 U.S. 296, 310

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(1989).

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Districts courts do have discretion pursuant to 28 U.S.C. § 1915(e)(1), to “request”

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that an attorney represent indigent civil litigants upon a showing of “exceptional

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circumstances.” See Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103

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(9th Cir. 2004). “A finding of the exceptional circumstances of the plaintiff seeking

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assistance requires at least an evaluation of the likelihood of the plaintiff’s success on the

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merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the

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complexity of the legal issues involved.’”Id. (quoting Wilborn v. Escalderon, 789 F.2d

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1328, 1331 (9th Cir. 1986)); see also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991).

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So long as a pro se litigant, like Plaintiff in this case, is able to “articulate his

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claims against the relative complexity of the matter,” the “exceptional circumstances”

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which might require the appointment of counsel do not exist. Rand, 113 F.3d at 1525

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(citing Wilborn, 789 F.2d at 1331) (finding no abuse of discretion under 28 U.S.C.

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§ 1915(e) when district court denied appointment of counsel despite fact that pro se

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prisoner “may well have fared better– particularly in the realms of discovery and the

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securing of expert testimony.”).

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In this case, Plaintiff has demonstrated his ability to articulate essential facts

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supporting his claims. In addition to the extent that Plaintiff’s medical condition results

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in a need for additional time to file his pleadings, the Court has shown a willingness to

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provide Plaintiff with extensions of time when warranted. Moreover, Plaintiff’s action

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involves one claim against one Defendant and is not complex. Thus, the Court finds that

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neither the interests of justice nor exceptional circumstances warrant appointment of

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counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987). A motion for

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reconsideration cannot be granted merely because Plaintiff is unhappy with the judgment,

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frustrated by the Court’s application of the facts to binding precedent or because he

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disagrees with the ultimate decision. See 11 Charles Alan Wright & Arthur R. Miller
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13cv0854 BTM (KSC)

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Federal Practice & Procedure 2d § 2858 (Supp. 2013) (citing Edwards v. Velvac, Inc.,

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19 F.R.D. 504, 507 (D. Wis. 1956)).

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III.

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Conclusion and Order
Accordingly, Plaintiff’s Motion brought pursuant to FED.R.CIV.P. 60 (ECF No. 51)

is hereby DENIED without prejudice.

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IT IS SO ORDERED.

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Dated: September 16, 2014

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BARRY TED MOSKOWITZ, Chief Judge
United States District Judge

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