Bradford v. Khamooshian et al

Filing 167

ORDER denying Plaintiff's 166 Motion for Reconsideration re 156 Order on Motion to Appoint Counsel. Plaintiff's motion for reconsideration is untimely. Plaintiff has not met the standard for reconsideration, mere disagreement with the Court's decision is not sufficient grounds for reconsideration. Signed by Magistrate Judge Allison H. Goddard on 10/9/2019. (All non-registered users served via U.S. Mail Service)(jah)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RAYMOND ALFORD BRADFORD, Case No.: 3:17-cv-2053-BAS-AHG Plaintiff, 12 13 v. 14 ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION ON ORDER DENYING PLAINTIFF’S MOTION TO APPOINT COUNSEL K. KHAMOOSHIAN, et al., Defendants. 15 [ECF No. 166] 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the Court is Plaintiff Raymond Alford Bradford’s (“Plaintiff”) motion objecting to the Court’s order denying his motion to appoint counsel (ECF No. 156), which the Court construes as a motion for reconsideration. ECF No. 166. For the reasons set forth below, the Court DENIES Plaintiff’s motion. I. PLAINTIFF’S MOTION FOR RECONSIDERATION IS UNTIMELY Pursuant to Civil Local Rule 7.1(i)(2), any motion for reconsideration must be filed within 28 days after the entry of the order sought to be reconsidered. Here, the Court entered its order denying Plaintiff’s original motion to appoint counsel on August 12, 2019. ECF No. 156. Thus, Plaintiff’s motion for reconsideration was due on September 9, 2019. Though Plaintiff’s motion for reconsideration is dated September 1, 2019, it was not received by the California State Prison until September 28, 2019, and therefore it was not 1 3:17-cv-2053-BAS-AHG 1 received by the Clerk’s Office until October 4, 2019. Compare ECF No. 166 at 1 with ECF 2 No. 166 at 14. Courts have denied motions for consideration when they are untimely. See, 3 e.g., Tillisy v. Wash. Dep’t of Corr., No. 3:18-cv-5695-RJB-JRC, 2019 U.S. Dist. LEXIS 4 142561, at *1 (W.D. Wash. Aug. 21, 2019) (denying a pro se inmate’s motion for 5 reconsideration of an order denying appointment of counsel because it was untimely). 6 II. EVEN IF TIMELY, PLAINTIFF’S MOTION FAILS ON THE MERITS 7 Though Plaintiff’s motion is untimely, the Court has considered the merits of 8 Plaintiff’s request as other courts have done. See, e.g., Castro v. Ressing, No. S-11-2253- 9 KJM-KJN-P, 2012 U.S. Dist. LEXIS 51165, at *1 (E.D. Cal. Apr. 11, 2012) (addressing 10 the merits briefly even though the motion for reconsideration was untimely); Coleman v. 11 Evergreen Pub. Sch., No. C18-556-RBL, 2018 WL 5886452, at *1 (W.D. Wash. Nov. 9, 12 2018) (same). However, even if Plaintiff’s motion for reconsideration was timely, it would 13 still fail. 14 a. Legal Standard 15 Reconsideration is an “extraordinary remedy, to be used sparingly.” Carroll v. 16 Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); Kona Enters., Inc. v. Estate of Bishop, 229 17 F.3d 877, 890 (9th Cir. 2000). A motion for reconsideration should not be granted, absent 18 highly unusual circumstances, unless the court is “presented with newly discovered 19 evidence, committed clear error, or if there is an intervening change in the controlling law.” 20 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 21 2009) (citation omitted); see also CivLR 7.1(i)(1) (stating that the party seeking relief must 22 present “what new or different facts and circumstances are claimed to exist which did not 23 exist, or were not shown, upon such prior application”). “A motion for reconsideration may 24 not be used to raise arguments or present evidence for the first time when they could 25 reasonably have been raised earlier in the litigation.” Marlyn Nutraceuticals, 571 F.3d at 26 880 (citation and internal quotation marks omitted); United States v. Westlands Water 27 District, 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) (stating that “a motion for 28 reconsideration is not a vehicle to reargue the motion”). 2 3:17-cv-2053-BAS-AHG 1 Therefore, a party seeking reconsideration “must show more than a disagreement 2 with the Court’s decision, and recapitulation . . . of that which was already considered by 3 the Court in rendering its decision.” Westlands Water District, 134 F. Supp. 2d at 1131; 4 see also Coleman v. Evergreen Pub. Sch., No. C18-556-RBL, 2018 WL 5886452, at *1 5 (W.D. Wash. Nov. 9, 2018) (stating that a motion for reconsideration is not “intended to 6 provide litigants with a second bite at the apple. . . . Mere disagreement with a previous 7 order is an insufficient basis for reconsideration[.]”). 8 b. Discussion 9 Here, Plaintiff contends that his motion to appoint counsel (ECF No. 152) should 10 have been granted because (1) Plaintiff has been declared mentally insane; (2) Plaintiff is 11 likely to succeed on the merits; (3) the case is complex; and (4) Plaintiff is indigent. ECF 12 No. 166 at 1. In Plaintiff’s original motion to appoint counsel, counsel made similar 13 arguments. Plaintiff contended that he was declared mentally insane and on involuntary 14 psychotropic medication, and that the issues in the case are complex. ECF No. 152 at 1. 15 Plaintiff also stated that the Defendant “is responsible” for his RICO, “Heck Rule,” and 16 state law stolen property claims, which the Court construes as asserting that his claims are 17 valid and thus likely to succeed. Id.; see, e.g., Eldridge v. Block, 832 F.2d 1132, 1137 (9th 18 Cir. 1987). Therefore, the only new contention1 Plaintiff makes in his motion for 19 reconsideration is that he is indigent. 20 Since Plaintiff filed his motion to proceed in forma pauperis on December 26, 2017 21 (ECF No. 16), Plaintiff’s indigence is not a recent occurrence to be construed as “new or 22 different circumstances” under which to request reconsideration. See CivLR 7.1(i)(1); 23 24 25 26 27 28 The only other difference between Plaintiff’s original motion to appoint counsel and his motion for reconsideration is the exhibits he included. In his motion for reconsideration, he additionally provided his medical injury report and two rules violation reports. ECF No. 166 at 7–12. These are the same exhibits Plaintiff has included in previous filings. ECF No. 60 at 23–28, 32–33. Given that this information was in the purview of the Court when making its original decision regarding Plaintiff’s motion to appoint counsel, again, these exhibits are not “newly discovered evidence” to warrant reconsideration. 1 3 3:17-cv-2053-BAS-AHG 1 Marlyn Nutraceuticals, 571 F.3d at 880. A party seeking reconsideration must show more 2 what “was already considered by the Court in rendering its decision.” Westlands Water 3 District, 134 F. Supp. 2d at 1131. 4 Additionally, even if Plaintiff’s indigence was a new circumstance, it still does not 5 entitle Plaintiff to counsel. No constitutional right to counsel exists for an indigent plaintiff 6 in a civil case unless the plaintiff may lose his physical liberty if he loses the litigation. See 7 Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981). Only under “exceptional 8 circumstances” may a court exercise its discretion and appoint counsel for indigent civil 9 litigants. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Agyeman v. Corrs. Corp. of 10 Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Indigence alone is not an exceptional 11 circumstance. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983) (stating that 12 “exceptional circumstances” include a likelihood of success on the merits and the inability 13 of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues 14 involved); see, e.g., Arrellano v. Hodge, No. 14-cv-590-JLS-JLB, 2018 WL 637854, at *9 15 (S.D. Cal. Jan. 30, 2018) (denying appointment of counsel to an indigent pro se inmate 16 because exceptional circumstances did not exist); Eusse v. Vitela, No. 13-cv-916-BEN- 17 NLS, 2015 WL 4404865, at *2 (S.D. Cal. July 16, 2015) (same). 18 III. CONCLUSION 19 As set forth above, Plaintiff’s motion for reconsideration is untimely. Moreover, 20 Plaintiff has not met the standard for reconsideration; mere disagreement with the Court’s 21 decision is not sufficient grounds for reconsideration. Accordingly, the Court DENIES 22 Plaintiff’s motion for reconsideration of the Court’s previous order denying appointment 23 of counsel. 24 25 IT IS SO ORDERED. Dated: October 9, 2019 26 27 28 4 3:17-cv-2053-BAS-AHG

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