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Wallace v. Olson

United States District Court, S.D. California

April 12, 2017

TYRONE WALLACE, CDCR #P-48941, Plaintiff,
v.
CCII R. OLSON, Appeals Coordinator, et al. Defendants.

         ORDER 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 § 1915A

          Anthony J. Battaglia United States District Judge

         TYRONE 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.

         In his 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.

         Plaintiff's 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.)

         I. Procedural History

         On 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).

         The 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 § 1915A(b).

         II. Motion for Reconsideration

         A. Plaintiff's Claims

         On 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), [1] 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.[2] (Id. at 2.)

         B. Standard of Review

         Any 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.”).

         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. 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).[3]

         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 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).

         That is 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.

         Therefore, 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.

         III. 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).[4]

         All 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. Id.

         To 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 ...


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