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Owen Lino, Cdcr #J-45685 v. J. Kellerman

February 28, 2012

OWEN LINO, CDCR #J-45685, PLAINTIFF,
v.
J. KELLERMAN, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER:

(1) DENYING MOTION FOR RECONSIDERATION AND MOTION TO ALTER REARRANGE AND RECONSIDER THE COURT'S ORDER [ECF Nos. 54, 67];

(2) DENYING MOTIONS TO APPOINT COUNSEL; AND

(3) DISMISSING FIFTH AMENDED COMPLAINT AS FRIVOLOUS PURSUANT TO 28 U.S.C. §§ 1915(e)(2) AND 1915A(b)

I. Procedural History

On February 26, 2010, Owen Lino ("Plaintiff"), a state prisoner currently incarcerated at Kern Valley State Prison, and proceeding pro se, submitted a civil action pursuant to 42 U.S.C. § 1983. Additionally, Plaintiff filed a Motion to Proceed In Forma Pauperis ("IFP") [ECF No. 2]. On April 21, 2010, the Court granted Plaintiff's Motion to Proceed IFP but sua sponte dismissed his Complaint for failing to state a claim upon which relief could be granted. See Apr. 21, 2010 Order at 4-5. Plaintiff then filed his First Amended Complaint, along with several miscellaneous motions including a Motion for Leave to Supplement his First Amended Complaint. The Court granted his request and permitted him sixty (60) days to file a Second Amended Complaint. See July 12, 2010 Order at 3. Plaintiff filed a Second Amended Complaint but then sought leave to file a Third Amended Complaint before the Court could conduct a sua sponte screening. Plaintiff was granted leave to file a Third Amended Complaint. Plaintiff's Third Amended Complaint was filed on December 8, 2010. The Court conducted a sua sponte screening of Plaintiff's Third Amended Complaint and found dismissal of the entire action was warranted for a number of reasons, including the failure of Plaintiff to comply with Rule 8 of the Federal Rules of Civil Procedure. See May 20, 2011 Order at 2. Plaintiff was granted leave to file a Fourth Amended Complaint. Plaintiff filed his Fourth Amended Complaint ("FAC") on August 23, 2011. In addition, Plaintiff filed a Motion for Preliminary Injunction [ECF No. 44], along with his third "Motion to Amend the Pleadings" [ECF No. 46].

On November 1, 2011, the Court, once again, conducted a sua sponte screening of Plaintiff's Fourth Amended Complaint. The Court denied Plaintiff's Motion for Preliminary Injunction, granted Plaintiff's Motion to Amend the Pleadings and dismissed his Fourth Amended Complaint for failing to state a claim and as frivolous. See Nov. 1, 2011 Order at 11. Plaintiff was granted leave to file a Fifth Amended Complaint. Id. Plaintiff has now filed a Fifth Amended Complaint, along with a Motion for Reconsideration and a "Motion for Permission to File This Motion to Alter, Rearrange & Reconsider the Court's Order/Judgment." Plaintiff has also filed a Motion to Appoint Counsel.

Plaintiff's Fifth Amended Complaint now names seventy three (73) Defendants and exceeds the pages limitations previously set by the Court. However, the Court will consider Plaintiff's Fifth Amended Complaint in its entirety.

II. Motions for Appointment of Counsel

Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution provides no right to appointment of counsel in a civil case, however, unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dept. of Social Services, 452 U.S. 18, 25 (1981). Nonetheless, under 28 U.S.C. § 1915(e)(1), district courts are granted discretion to appoint counsel for indigent persons. This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). "A finding of exceptional circumstances requires an evaluation of both the 'likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.' Neither of these issues is dispositive and both must be viewed together before reaching a decision." Id. (quoting Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)).

The Court deniesPlaintiff's request without prejudice, as neither the interests of justice nor exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.

III. Motions for Reconsideration and Motion pursuant to Rule 60(b)

Plaintiff seeks reconsideration and relief from the Court's Order rejecting Plaintiff's Motion to Amend his Fifth Amended Complaint. See Dec. 12, 2011 Order at 1. In addition, Plaintiff seeks reconsideration of the Court's November 1, 2011 Order dismissing his Fourth Amended Complaint and granting him leave to file a Fifth Amended Complaint. [ECF Nos. 54, 67].

Under Rule 60, a motion for "relief from a final judgment, order or proceeding" may be filed within a "reasonable time," but usually must be filed "no more than a year after the entry of the judgment or order or the date of the proceeding." FED.R.CIV.P. 60(c). Reconsideration under Rule 60 may be granted in the case of: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the judgment ...


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