Washington v. Tubls et al

Filing 31

ORDER denying 26 Motion for Reconsideration of 11 Order on Motion to Appoint Counsel. Signed by Magistrate Judge Karen L Hayes on 9/19/13. (crt,Crawford, A)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
RUDOLPH WASHINGTON
LA. DOC #308049
VS.

CIVIL ACTION NO. 3:13-cv-0217
SECTION P
JUDGE ROBERT G. JAMES

MAJOR TUBBS AND
LT. COLEMAN

MAGISTRATE JUDGE KAREN L. HAYES
MEMORANDUM ORDER

On May 9, 2013, the Court denied Plaintiff’s Motion for Appointment of Counsel. [doc.
# 11]. On September 9, 2013, Plaintiff filed the instant Motion seeking reconsideration of the
Order denying his Motion for Appointment of Counsel.1 [doc. # 26]. For reasons that follow,
Plaintiff’s Motion for reconsideration is DENIED.2
In his Motion for reconsideration, Plaintiff largely parrots the elements of the test for
appointment of counsel that this Court provided Plaintiff in the Court’s previous Order denying
appointment of counsel. Plaintiff argues:
1. Plaintiff is unable to afford counsel. He has request [sic] leave to proceed in forma
pauperis.
2. Plaintiff [sic] imprisonment will greatly limit his ability to litigate. The issues
involved in this case are complex and will require significant research and
investigation. Plaintiff has limited access to the law library and limited knowledge
of the law.
1

2

The Court construes Plaintiff’s untitled Motion as a motion for reconsideration.

As this is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive
of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil
Procedure, this ruling is issued under the authority thereof, and in accordance with the standing
order of this court. Any appeal must be made to the district judge in accordance with Rule 72(a)
and L.R. 74.1(W).

3. A trial in this case will likely involve conflicting testimony and counsel would
better enable plaintiff to present evidence and cross examine witnesses.
4. Plaintiff has made repeated efforts to obtain a lawyer.
Id. at 1.
Generally, “motions to reconsider are analyzed under Rule 59(e) of the Federal Rules of
Civil Procedure.” McDonald v. Entergy Operations, Inc., 2005 WL 1528611, at * 1 (S.D. Miss.
May 31, 2005). Rule 59(e) motions “serve the narrow purpose of allowing a party to correct
manifest errors of law or fact or to present newly discovered evidence.” Waltman v. Int'l Paper
Co., 875 F.2d 468, 473 (5th Cir. 1989). The three factors typically considered by district courts
in evaluating motions filed under Rule 59(e) are: (1) an intervening change in controlling law, (2)
the availability of new evidence not previously available, or (3) the need to correct a clear error
of law or fact or to prevent a manifest injustice. Schiller v. Physicians Res. Grp., Inc., 342 F.3d
563, 566 (5th Cir. 2003).
The Court finds that Plaintiff has not made the requisite showing with respect to his
Motion for reconsideration. As mentioned, Plaintiff largely parrots the applicable factors
required for appointment of counsel, while providing no evidence in support.3 Plaintiff’s Motion
does not address or allege any new evidence or change in circumstances that would warrant this
Court to reconsider any of its previous bases for denying appointment. To be sure, Plaintiff does
put forth several arguments not previously considered, but none constitute “new evidence not
previously available.”
Plaintiff first argues that he should be appointed counsel because he is unable to afford
3

[See doc. # 11, p. 2].
2

counsel. [doc. # 26]. This argument is without merit because all plaintiffs must be “unable to
afford counsel” in order for the court to request an attorney to represent them. 28 U.S.C.A. §
1915(e)(1). Plaintiff next argues that his confinement in prison is limiting his ability to
adequately litigate. However, Plaintiff has been able to conduct meaningful discovery in this
case thus far and has managed to file a complaint and the instant Motion for reconsideration.
The mere fact that Plaintiff is incarcerated does not mean that he is unable to adequately
investigate his case. See Feist v. Jefferson Cnty. Com’rs Court, 778 F.2d 250, 253 (5th Cir.
1985).
Plaintiff also contends that a trial will likely involve conflicting testimony and counsel
would better enable Plaintiff to present evidence and cross-examine witnesses. It appears that
Plaintiff is re-stating the legal standard set forth in this Court’s first Order. Plaintiff’s
unsupported averment only informs the Court of the fact that there is conflicting evidence in the
record. Indeed there is conflicting evidence: this is a dispute. Plaintiff’s contention is unavailing
because Plaintiff puts forth no new evidence to show that appointing counsel would aid in the
disposition of the suit.
Finally, Plaintiff argues that, subsequent to this Court’s previous Order denying
appointment of counsel, he has made attempts to secure counsel. Plaintiff has not, however,
described in sufficient detail what effort, if any, he has made to secure private counsel. Plaintiff
states that he has attached letters that he sent to various attorneys, and he states that he has asked
his cousin to contact several more attorneys. [doc. # 26, p. 1-2]. However, there are no letters
attached to Plaintiff’s Motion and there is no documentation reflecting his cousin’s efforts to
contact any counsel. In any event, even if Plaintiff provided the requisite documentation, he does
3

not sufficiently address any of the other bases for the previous denial of his Motion: i.e, that the
Plaintiff is able to adequately present his case and that his claims do not demonstrate
“exceptional circumstances” to warrant the appointment of counsel.
IT IS ORDERED that Plaintiff’s Motion for reconsideration be DENIED.4
Signed this 19th day of September, 2013, in chambers in Monroe, Louisiana.

4

Plaintiff also requests records from the Jackson Parish Correctional Center (“JPCC”). It
is unclear whether JPCC possesses any records relevant to this case. If JPCC does possess
relevant records, Plaintiff must subpoena them because JPCC is not a party to this action, despite
the fact that JPCC was mistakenly added to the caption in Documents 11 and 29. Plaintiff may
request a blank subpoena from the Clerk of Court which he can complete and have served upon
JPCC in accordance with Federal Rule of Civil Procedure 45.
4