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Wallace v. Rundle

United States District Court, S.D. California

March 16, 2017

TYRONE WALLACE, CDCR #P-48941, Plaintiff,
RUNDLE, RJD DDP Psy.D; ZUDIKER, RJD DDP Psy.D; and J. LEWIS, CCCHS, Third Level Deputy Director, Defendants.


          Hon. Cynthia Bashant United States District Judge.

         Plaintiff Tyrone Wallace, who is currently incarcerated at the Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, and is proceeding pro se and in forma pauperis, has filed this civil rights action pursuant to 42 U.S.C. § 1983. He seeks both injunctive relief and money damages against two RJD clinical psychologists (Defendants Rundle and Zudiker), and the Deputy Director of California Correctional Health Care Services (“CCHCS”) (Defendant Lewis), based on claims that they violated his Fourteenth Amendment rights by refusing to designate him as a “DPP” prisoner.[1] (ECF No. 7 at 4-9, 13-14, 55, 57; ECF No. 13 at 3-7.)

         I. Procedural History

         On December 8, 2016, the Court dismissed Plaintiff's First Amended Complaint (“FAC”) (ECF No. 7) sua sponte for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. (ECF No. 12.) Because he is proceeding without counsel, the Court also apprised Plaintiff of his pleading deficiencies and granted him leave to amend. (Id. at 4-9.) Plaintiff responded by filing a Second Amended Complaint (“SAC”) (ECF No. 13), a Motion for Reconsideration of the Court's December 8, 2016, Order (ECF No. 15), two subsequent motions seeking leave to amend and/or supplement the causes of action already alleged in his SAC (ECF Nos. 17, 23), and a Motion for Appointment of Counsel (ECF No. 21).

         The Court will address each of Plaintiff's Motions in turn, and in conjunction with the sua sponte screening of his SAC as required by 28 U.S.C. § 1915(e)(2) and § 1915A(b).

         II. Motion for Reconsideration

         A. Plaintiff's Claims

         On December 29, 2016, and within the 28 days permitted to file an application for reconsideration pursuant to Civil Local Rule 7.1(i)(2) or a motion to alter or amend a judgment pursuant to Federal Rule of Civil Procedure 59(e), Plaintiff filed a Motion for Reconsideration of the Court's December 8, 2016, Order. (ECF No. 15.) Plaintiff argues the Court issued a “bias[ed] and prejudicial ruling” by finding his FAC failed to state a Fourteenth Amendment claim, because he “cite[d] and state[d] and show[ed] exhibits” which demonstrate he has “3d grade” handwriting and an “educational handicap.” (Id. at 2-3). Plaintiff further argues reconsideration is warranted because the Court failed to rely on specific exhibits attached to his FAC, which he claims prove Defendants “lied” by finding him ineligible for DPP placement. (Id.)

         B. Standard of Review

         An order that resolves fewer than all of the claims among the parties “is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.” Fed.R.Civ.P. 54(b); see also Civ. L. R. 7.1(i)(1) (authorizing applications for reconsideration of “any motion . . . for any order or other relief [that] has been made to any judge and has been refused in whole or in part . . . .”). However, reconsideration is an “extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” Kana Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); Century Indem. Co. v. Marine Grp., LLC, No. 3:08-CV-1375- AC, 2016 WL 96147, at *2 (D. Or. Jan. 7, 2016). Generally, reconsideration is only appropriate where there has been an intervening change in controlling law, new evidence has become available, or it is necessary to correct clear error or prevent manifest injustice. See Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

         In the absence of new evidence or a change in the law, a party may not use a motion for reconsideration to raise arguments or present new evidence for the first time when it could reasonably have been raised earlier in the litigation. Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 2003); see also Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); United States v. Munguia, No. 1:08-CR-000228-LJO-1, 2016 WL 1452011, at *1 (E.D. Cal. Apr. 13, 2016). Motions to reconsider are also “not vehicles permitting the unsuccessful party to ‘rehash' arguments previously presented.” United States v. Navarro, 972 F.Supp. 1296, 1299 (E.D. Cal. 1997), rev'd on other grounds, 160 F.3d 1254 (9th Cir. 1998). Ultimately, a party seeking reconsideration must show “more than a disagreement with the Court's decision, and recapitulation of the cases and arguments considered by the court before rendering its original decision fails to carry the moving party's burden.” United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001) (citations and internal quotation marks omitted); Wood v. Carey, No. 2:04-CV-1225 MCE AC, 2015 WL 4617773, at *3 (E.D. Cal. July 31, 2015). “While a motion for reconsideration allows a party to bring a material oversight to the court's attention, it is not appropriate for a party to request reconsideration merely to force the court to think about an issue again in the hope that it will come out the other way the second time.” Brown v. S Nev. Adult Mental Health Servs., 2014 WL 2807688, at *2 (D. Nev. 2014) (internal quotation marks omitted); see also Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006).

         That is what Plaintiff essentially seeks here-he disagrees with the Court's December 8, 2016, conclusion that his FAC failed to allege facts sufficient to support a Fourteenth Amendment claim, and he re-directs the Court to exhibits originally attached to his FAC in hopes that the Court might change its mind as to whether they provide “factual content that allows the court to draw the reasonable inference that the defendant[s] [are] liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). They do not. See ECF No. 15 at 2-4. Therefore, because Plaintiff points to no intervening change in the law, material oversight, or any error whatsoever, his Motion for Reconsideration is denied.

         III. Motion for Appointment of Counsel

         Plaintiff also requests that the Court appoint him counsel due to his “bad handwriting, ” “low education, ” and “learning disability.” (ECF No. 21 at 3-4).[2]

         All documents submitted by any pro se litigant, no matter how “inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). But there is no constitutional right to counsel in a civil case, and nothing in Plaintiff's latest filings suggest the Court should exercise its limited discretion to request that an attorney represent him pro bono pursuant to 28 U.S.C. § 1915(e)(1). See Lassiter v. Dept. of Social Servs., 452 U.S. 18, 25 (1981); Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). Only “exceptional circumstances” support such a discretionary appointment. Terrell v. Brewer, 935 F.3d 1015, 1017 (9th Cir. 1991); Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Exceptional circumstances exist where there is a showing of both a likelihood of success on the merits and a demonstrated inability of the pro se litigant to articulate his claims in light of their legal complexity. Id.

         To date, and in this case alone, Plaintiff has filed three complaints (ECF Nos. 1, 7, 13), five subsequent addenda and/or motions seeking leave to amend or supplement the causes of action included in those complaints (ECF Nos. 4, 9, 11, 17, 23), and a motion for reconsideration (ECF No. 15)-all of which contain factual allegations, legal arguments and voluminous exhibits in support. These pleadings together and alone demonstrate that while Plaintiff may not be formally trained in law, and may suffer from a “learning disability, ” (ECF No. 21 at 3), he has nevertheless shown he is fully capable of legibly articulating the facts and circumstances relevant to his Fourteenth Amendment claims, which are typical, straightforward, and not legally “complex.” Agyeman, 390 F.3d at 1103; see also Meeks v. Nunez, No. 13cv973-GPC(BGS), 2017 WL 476425, at *4 (S.D. Cal. Feb. 6, 2017) (denying appointment of counsel pursuant to § 1915(e)(1) where prisoner's “alleged mental disability ha[d] not affected his ability to articulate his ...

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