UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
April 18, 2011
CURTIS LEE HENDERSON, SR.,
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION OF MAGISTRATE JUDGE'S ORDER
Plaintiff Curtis Lee Henderson, Sr., ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding against Defendant G. Miller for retaliation in violation of the First Amendment. Pending before the Court is Plaintiff's motion for reconsideration, filed April 5, 2011. Doc. 71. Plaintiff's seeks reconsideration of the Magistrate Judge's order which denied Plaintiff's motion for appointment of counsel. The Court construes the motion as an objection to the Magistrate Judge's order pursuant to Rule 72(a) of the Federal Rules of Civil Procedure.
Rule 72(a) states in pertinent part: "The district judge in the case must consider timely objections and modify or set aside any part of the [magistrate judge's] order that is clearly erroneous or is contrary to law." Fed. R. Civ. P. 72(a) (emphasis added); see 28 U.S.C. § 636(b)(1)(A). Under the clearly erroneous standard of review, a district court may overturn a magistrate judge's ruling "'only if the district court is left with the definite and firm conviction that a mistake has been made.'" Computer Economics, Inc. v. Gartner Group, Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999) (quoting Weeks v. Samsung Heavy Indus. Co., Ltd., 126 F.3d 926, 943 (7th Cir. 1997)). Under the contrary to law standard, a district court may conduct independent review of purely legal determinations by a magistrate judge. Id.
Plaintiff moves for reconsideration of the Magistrate Judge's order which denied Plaintiff appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). Plaintiff contends that he needs appointment of counsel because California State Prison, Corcoran, where Plaintiff is currently house, placed all black prisoners on lockdown, and he is thus having difficulty obtaining supplies. Plaintiff seeks appointment of counsel to depose Defendant and to locate and interview potential incarcerated witnesses.
Pursuant to the Court's Local Rules, Plaintiff's motion is untimely. L.R. 303(b). Plaintiff's arguments are also unpersuasive. Prison regulations exist which govern correspondence between inmates. See Cal. Code Regs. tit. 15, § 3139 (2011). Thus, Plaintiff is capable of seeking correspondence with his potential inmate witnesses. Plaintiff also seeks to depose Defendant. However, discovery in this matter is closed. Any deposition at this time is untimely. Plaintiff's issues with meeting court deadlines is speculative at this time. Plaintiff is not required to submit his pretrial statement until July 6, 2011.
Appointment of counsel is clearly beneficial to Plaintiff, but that is not the determination. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997). The Magistrate Judge found that Plaintiff is able to articulate adequately his claims in this action. This matter is not complex. This action concerns a retaliation claim in which Defendant allegedly deprived Plaintiff of his property because he filed inmate grievances. The Court does not find this case to have exceptional circumstances which merit appointment of counsel. The Magistrate Judge's order is not clearly erroneous or contrary to law. Fed. R. Civ. P. 72(a).
Based on the foregoing, it is HEREBY ORDERED that Plaintiff's motion for reconsideration, filed April 5, 2011, is denied.
IT IS SO ORDERED.
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