Davis v. Rosa et al

Filing 12

ORDER: Denying Plaintiffs 8 Motion to Appoint Counsel; Denying Plaintiff's 6 Motion for Reconsideration. It is ordered that the Court denies Plaintiff's Motion for Appointment of Counsel and denies Plaintiffs Motion for Reconsideration. The Clerk of Court is instructed to close the case. Signed by Judge Michael M. Anello on 3/6/2017. (All non-registered users served via U.S. Mail Service)(dxj) (sjt).

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 3:16-cv-02406-MMA-BLM MARLON O. DAVIS, 12 13 14 15 16 ORDER: Plaintiff, vs. (1) DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL; GUILLERMO VIERA ROSA; KAREN THACKER; JAMIE SAYLOR; THOMAS ALHAMBRA, [Doc. No. 8] Defendants. 17 (2) DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 18 19 [Doc. No. 6] 20 21 22 Marlon Davis (“Plaintiff”), proceeding pro se and in forma pauperis (“IFP”) in this 23 civil rights action pursuant to 42 U.S.C. § 1983, has filed a Motion for Reconsideration of 24 this Court’s December 5, 2016 Order (Doc. No. 6). Plaintiff claims the Court should 25 have provided Plaintiff the opportunity to amend his pleading. (Id. at 1.) Specifically, 26 Plaintiff claims that he is “not an attorney, [he] cannot articulate this complaint correctly 27 and the Court did not understand Plaintiff.” (Id.) Plaintiff also moves for appointment of 28 counsel (Doc. No. 8). 1 3:16-cv-02406-MMA-BLM 1 I. 2 Procedural History On December 15, 2016, the Court granted Plaintiff’s Motion to Proceed IFP but 3 sua sponte dismissed his Complaint (“Compl.”) for failing to state a claim and for 4 seeking monetary damages against immune defendants pursuant to 28 U.S.C. 5 § 1915(e)(2). (Doc. No. 3.) The Court found that while Fed.R.Civ.P. 15(a)(2) provides 6 that “[t]he court should give leave [to amend] freely when justice so requires,” the Court 7 further found that amendment under the circumstances of this case would be futile. (Doc. 8 No. 3 at 6.) On December 16, 2016, Plaintiff filed his Motion for Reconsideration, along 9 with a Motion to Appoint Counsel. (Doc. Nos. 6, 8.) 10 11 II. Plaintiff’s Motion for Appointment of Counsel Plaintiff seeks counsel in this action to assist him because he is “unable to afford 12 counsel” and “counsel would better enable Plaintiff to present evidence and cross 13 examine witnesses.” (Doc. No. 8 at 3.) 14 There is no constitutional right to counsel in a civil case. Lassiter v. Dept. of 15 Social Services, 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1), district 16 courts have some limited discretion to “request” that an attorney represent an indigent 17 civil litigant, Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), 18 this discretion is rarely exercised and only under “exceptional circumstances.” Id.; see 19 also Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional 20 circumstances requires “an evaluation of the likelihood of the plaintiff’s success on the 21 merits and an evaluation of the plaintiff’s ability to articulate his claims ‘in light of the 22 complexity of the legal issues involved.’” Agyeman, 390 F.3d at 1103, quoting Wilborn 23 v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 24 Applying these factors to Plaintiff’s case, the Court DENIES his Motion to 25 Appoint Counsel because a liberal construction of his original pleadings shows he is 26 capable of articulating the factual basis for his claims. All documents filed by pro se 27 litigants are construed liberally, and “a pro se complaint, however inartfully pleaded, 28 must be held to less stringent standards than formal pleadings drafted by lawyers.” 2 3:16-cv-02406-MMA-BLM 1 Erickson v. Pardus, 551 U.S. 89, 94 (2007). Moreover, FED. R. CIV. P. 8(e) requires that 2 “[p]leadings . . . be construed so as to do justice.” The pleadings filed by Plaintiff to date 3 demonstrate that while Plaintiff may not be a trained in law, he is capable of legibly 4 articulating the facts and circumstances relevant to his claims, which are typical, 5 straightforward, and not legally “complex.” Agyeman, 390 F.3d at 1103. Therefore, 6 neither the interests of justice nor any exceptional circumstances warrant the appointment 7 of counsel in this case at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); 8 Terrell, 935 F.2d at 1017. 9 III. 10 Plaintiff’s Motion for Reconsideration Plaintiff moves for reconsideration, arguing that the Court should have given him 11 the opportunity to file an amended complaint and states “the Court did not understand 12 Plaintiff.” (Doc. No. 6 at 1.) 13 “A Rule 59(e) motion may be granted if ‘(1) the district court is presented with newly 14 discovered evidence, (2) the district court committed clear error or made an initial decision 15 that was manifestly unjust, or (3) there is an intervening change in controlling law.’” 16 Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011) (quoting Zimmerman v. City of 17 Oakland, 255 F.3d 734, 737 (9th Cir. 2001)). This type of motion seeks “a substantive 18 change of mind by the court,” Tripati v. Henman, 845 F.2d 205, 206 n.1 (9th Cir. 1988) 19 (quoting Miller v. Transamerican Press, Inc., 709 F.2d 524, 526 (9th Cir. 1983)), and “is 20 an extraordinary remedy which should be used sparingly.” McDowell v. Calderon, 197 21 F.3d 1253, 1254 n.1 (9th Cir. 1999). Rule 59(e) may not be used to “‘relitigate old matters, 22 or to raise arguments or present evidence that could have been raised prior to the entry of 23 judgment.’” Stevo Design, Inc. v. SBR Mktg. Ltd., 919 F. Supp. 2d 1112, 1117 (D. Nev. 24 2013) (quoting 11 Charles Alan Wright et al., Federal Practice and Procedure § 2810.1 25 (2d ed. 1995)). 26 In Plaintiff’s Complaint, he alleges that Defendants should have provided him with 27 housing upon his release from prison. (See Compl. at 3.) Plaintiff also claimed that 28 Defendants “offered no valid assistance, leaving me to fend for myself after being 3 3:16-cv-02406-MMA-BLM 1 incarcerated for such a long time.” (Id.) Plaintiff acknowledged that his “elderly aunt” 2 paid for his housing but argues that his housing should have been paid for by his parole 3 agents. (Id. at 4.) 4 The Supreme Court has held that the Due Process Clause “generally confer[s] no 5 affirmative right to governmental aid, even where such aid may be necessary to secure life, 6 liberty, or property interests of which the government itself may not deprive the 7 individual.” DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196 8 (1989). If Plaintiff were still incarcerated, the State of California would be obligated to 9 provide him housing, but there is no such obligation once he has been released from 10 custody. Id. at 199-200 (“[W]hen the States takes a person into its custody and holds him 11 there against his will, the Constitution imposes upon it a corresponding duty to assume 12 some responsibility to his safety and general well-being.”) (citations omitted.). 13 Plaintiff offers no factual support or legal argument for why he should be given 14 leave to amend after the Court has found that amending his pleading would be futile. 15 While Plaintiff claims the Court did not understand him, he makes no effort to clear up 16 any misunderstanding regarding the nature of his claims. Moreover, Plaintiff’s Motion 17 does not seek reconsideration based on newly discovered evidence or any intervening 18 change in controlling law. See Ybarra, 656 F.3d at 998. 19 III. 20 Conclusion and Order Based on the foregoing, the Court DENIES Plaintiff’s Motion for Appointment of 21 Counsel and DENIES Plaintiff’s Motion for Reconsideration. The Clerk of Court is 22 instructed to close the case. 23 24 25 IT IS SO ORDERED. DATE: March 6, 2017 _______________________________________ HON. MICHAEL M. ANELLO United States District Judge 26 27 28 4 3:16-cv-02406-MMA-BLM

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