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Craig Cooper v. Synthia Sely

May 7, 2013

CRAIG COOPER,
PLAINTIFF,
v.
SYNTHIA SELY, (ECF NOS. 43 & 44) DEFENDANT.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER (1) DENYING PLAINTIFF'S MOTION RENEWING REQUEST FOR COUNSEL (2) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL

I. PROCEDURAL HISTORY

Plaintiff Craig Cooper is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed April 1, 2011 pursuant to 42 U.S.C. § 1983. (ECF No. 1.)

This matter proceeds on Plaintiff's claims of denial of medical care and state law negligence against Defendant Sely, a Licensed Vocational Nurse ("LVN") at Pleasant Valley State Prison ("PVSP"). (ECF No. 9.) Defendant Sely filed her Answer on May 15, 2012. (ECF No. 13.) The discovery cut-off date is April 3, 2013. (ECF No. 37.) The dispositive motion deadline is June 11, 2013. (Id.) Plaintiff filed a Motion for Summary Judgment on April 5, 2013. (ECF No. 40.) Defendant filed a Motion for Summary Judgment on April 25, 2013. (ECF No. 47.)

Pending before the Court are Plaintiff's Motions filed April 17, 2013 (1) to Renew Request for Counsel (ECF No. 43) and (2) for Appointment of Counsel (ECF No. 44). II.

MOTION RENEWING REQUEST FOR COUNSEL

Plaintiff renews his June 13, 2012 Motion for Appointment of Counsel (ECF No. 17) which was denied by the Court on June 21, 2012. (ECF No. 20.) The Court construes this Motion (ECF No. 43) as a request for reconsideration. So construed, this Motion shall be denied.

A. Legal Standard

Rule 60(b)(6) allows the Court to relieve a party from an order and judgment for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id. In seeking reconsideration of an order, Local Rule 230(j) requires a party to identify the motion or order in issue and when it was made, and show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."

"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the . . . court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009), and "[a] party seeking reconsideration must show more than a disagreement with the [c]court's decision, and recapitulation . . ." of that which was already considered by the court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

B. No Basis for Reconsideration

Plaintiff provides no argument in support of reconsideration and cites to no error, newly discovered evidence, or other grounds supporting reconsideration. He merely attaches his June 13, 2012 Motion and seeks reconsideration based upon the same facts and circumstances previously considered and rejected by the Court.

Plaintiff does not have a right to appointed counsel in this case. 28 U.S.C. ยง 1915(e)(1); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), partially overruled on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998). Plaintiff's June 13th Motion was denied for lack of facts showing exceptional circumstances. That ...


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