United States District Court, S.D. California
1) DENYING MOTIONS FOR RECONSIDERATION, APPOINTMENT OF
COUNSEL AND TO CORRECT ORDER [ECF Nos. 14, 19, 23] 2)
GRANTING MOTION FOR LEAVE TO AMEND CAUSE OF ACTION [ECF No.
17] AND 3) DISMISSING CIVIL ACTION FOR FAILING TO STATE A
CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND §
Anthony J. Battaglia United States District Judge
WALLACE (“Plaintiff”), currently incarcerated at
Richard J. Donovan Correctional Facility (“RJD”)
in San Diego, California, proceeding pro se, and in forma
pauperis (“IFP”), has filed this civil rights
action pursuant to 42 U.S.C. § 1983.
original Complaint, Plaintiff alleged two RJD appeals
officials (Defendants Olson and Ramirez) denied him access to
court in February and March 2013 by improperly screening out
a CDC 602 inmate appeal he attempted to file in response to a
disciplinary conviction arising out of November 2012 fight
with his cellmate. See ECF No. 1 at 3-4, 16-20.
First Amended Complaint (“FAC”) re-alleges the
same access to courts claims against Olson and Ramirez (ECF
No. 15 at 5-7), but it includes additional claims against a
RJD Psychologist (Defendant Dalglish) and RJD's Chief
Medical Officer (Defendant Glynn) related to their failures
in March and November 2012 to authorize his need for a single
cell based on his paranoia. (Id. at 3-4.)
November 15, 2016, the Court granted Plaintiff leave to
proceed IFP, denied his request for appointment of counsel,
and dismissed his Complaint sua sponte for failing to state a
claim pursuant to 28 U.S.C. § 1915(e)(2) and §
1915A (ECF No. 7). Because Plaintiff is proceeding pro se,
the Court also explained his pleading deficiencies and
granted him leave to fix them. (Id. at 6-9.)
Plaintiff responded by filing his FAC (ECF No. 15), a Motion
for Reconsideration of the Court's November 15, 2016
Order (ECF No. 14), a Motion for Leave to Amend “Cause
of Action #3” of the FAC filed on December 16, 2016
(ECF No. 17), a second Motion for Appointment of Counsel (ECF
No. 19), and a “Motion to Correct” a Court
scheduling Order filed on March 28, 2017 (ECF No. 23).
Court will address each of Plaintiff's Motions in turn,
and in conjunction with the sua sponte screening of his FAC
as required by 28 U.S.C. § 1915(e)(2) and §
Motion for Reconsideration
December 12, 2016, and within the 28 days permitted to file
an application for reconsideration pursuant to S.D. Cal.
CivLR 7.1.i.2, or a motion to alter or amend a judgment
pursuant to Fed.R.Civ.P. 59(e),  Plaintiff filed a Motion for
Reconsideration of the Court's November 15, 2016 Order
(ECF No. 14). Plaintiff requests reconsideration of the
dismissal of his access to courts claim arguing that the
Court “misstated fact” on page 8 of its Order in
reference to CDC 602 Appeal Log No. C-13-00598. (Id. at
Standard of Review
Order resolving 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); S.D. Cal. CivLR 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…”). While the
Court's November 15, 2016 screening Order dismissed
Plaintiff's Complaint in its entirety, no final judgment
was entered, and Plaintiff was given leave to amend. See
WMX Technologies, Inc. v. Miller, 104 F.3d 1133, 1136-37
(9th Cir. 1997) (“[W]hen a district court expressly
grants leave to amend, it is plain that the order is not
final.”); see also Martinez v. Wells Fargo
Bank, No. 12-CV-802-CAB (BGS), 2014 WL 12035852, at *1
(S.D. Cal. Mar. 21, 2014). The Court retains its inherent
power, rooted in the common law, to reconsider or modify an
interlocutory order for cause. See City of Los Angeles,
Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 887
(9th Cir. 2001); see also United States v. Martin,
226 F.3d 1042, 1048-49 (9th Cir. 2000) (where reconsideration
of a non-final order is sought, the court has “inherent
jurisdiction to modify, alter or revoke it.”).
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. The 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 Cnty. 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 quotes 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 omitted); see also Palmer
v. Champion Mortgage, 465 F.3d 24, 30 (1st Cir. 2006).
what Plaintiff essentially seeks here-he disagrees with the
Court's November 15, 2016 conclusion that his Complaint
failed to allege facts sufficient to support an access to
courts claim, and he re-directs the Court to exhibits
originally attached to that pleading 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.
14 at 2.
because Plaintiff points to no intervening change in the law,
material oversight, or any error whatsoever, his Motion for
Reconsideration (ECF No. 14) must be DENIED.
Motion for Appointment of Counsel
Plaintiff also requests that the Court to appoint him counsel
due to his “bad handwriting, ” “low
education, ” and “learning disability.”
(ECF No. 19 at 3-4).
documents submitted by any pro se litigant, no matter how
“inartfully pleaded” are held to “less
stringent standards that those drafted by lawyers.”
Id. at 4 (quoting 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 than 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 America, 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 cumulative 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.
date, and in this case alone, Plaintiff has filed two
complaints (ECF Nos. 1, 15), three subsequent addenda and/or
motions seeking leave to amend or supplement the causes of
action included in those complaints (ECF Nos. 6, 9, 17), a
motion for extension of time (ECF No. 11), a motion for
reconsideration (ECF No. 14), and a motion requesting the
court correct its own scheduling order (ECF No. 23)-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. 19 at 3), he has nevertheless
shown he is fully capable of legibly articulating the facts
and circumstances relevant to his claims, which are typical,
straightforward, and not legally “complex.”
Agyeman, 390 F.3d at 1103; see also Meeks v.
Nunez, 2017 WL 476425 at *4 (S.D. Cal. Feb. 6, 2107)
(unpub.) (denying appointment of counsel pursuant to §
1915(e)(1) where prisoners “alleged mental disability
ha[d] not affected his ability to articulate his ...