United States District Court, S.D. California
1) DENYING MOTIONS FOR RECONSIDERATION AND APPOINTMENT OF
COUNSEL (ECF Nos. 15, 21); 2) GRANTING MOTIONS FOR LEAVE TO
AMEND AND/OR SUPPLEMENT SECOND AMENDED COMPLAINT (ECF Nos.
17, 23); AND 3) DISMISSING CIVIL ACTION FOR FAILING TO STATE
A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND §
Cynthia Bashant United States District Judge.
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. (ECF No. 7 at 4-9, 13-14, 55, 57;
ECF No. 13 at 3-7.)
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).
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 §
Motion for Reconsideration
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.)
Standard of Review
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).
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.
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.
Motion for Appointment of Counsel
also requests that the Court appoint him counsel due to his
“bad handwriting, ” “low education, ”
and “learning disability.” (ECF No. 21 at
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
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 ...