United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION AND DISMISSING PLAINTIFF'S MOTION TO STAY
AS MOOT (DOC. NOS. 87, 90)
Columbus Allen, Jr. is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42
U.S.C. § 1983. (Doc. Nos. 1, 4.) A telephonic trial
confirmation hearing is currently set for July 31, 2017 and
jury trial is scheduled to commence on September 19, 2017.
(Doc. No. 84.) On May 16, 2017, the assigned magistrate judge
denied plaintiff's third motion to appoint counsel. (Doc.
No. 86.) Plaintiff filed on May 30, 2017 a motion for
reconsideration of that order (Doc. No. 87) and on June 21,
2017 a motion to stay the proceedings pending disposition of
the motion for reconsideration. (Doc. No. 90.) Defendants
filed an opposition to the motion for reconsideration on June
14, 2017. (Doc. No. 88.) For the following reasons, the
motion for reconsideration will be denied and the motion to
stay will be dismissed as having been rendered moot by this
order. Nevertheless, the court is currently attempting to
determine whether pro bono counsel may be available for
appointment on plaintiff's behalf.
Rule of Civil Procedure 72(a) provides that non-dispositive
pretrial matters may be referred to and decided by a
magistrate judge, subject to review by the assigned district
judge. See also Local Rule 303(c). The district
judge shall modify or set aside any part of the magistrate
judge's order which is “found to be clearly
erroneous or contrary to law.” Local Rule 303(f).
See also 28 U.S.C. § 636(b)(1)(A). Nothing
defendants seek reconsideration of here is dispositive. On a
motion to reconsider a magistrate judge's non-dispositive
order, the magistrate judge's factual determinations are
reviewed for clear error, and the magistrate judge's
legal conclusions are reviewed to determine whether they are
contrary to law. United States v. McConney, 728 F.2d
1195, 1200-01 (9th Cir. 1984), overruled on other grounds
by Estate of Merchant v. CIR, 947 F.2d 1390 (9th Cir.
1991). “A magistrate judge's decision is
‘contrary to law' if it applies an incorrect legal
standard, fails to consider an element of [an] applicable
standard, or fails to apply or misapplies relevant statutes,
case law, or rules of procedure.” Martin v.
Loadholt, No. 1:10-cv-00156-LJO-MJS, 2014 WL 3563312, at
*1 (E.D. Cal. July 18, 2014) (internal quotations and
reviewing pretrial orders of a magistrate, the district court
“may not simply substitute its judgment for that of the
deciding court.” Grimes v. City & County of San
Francisco, 951 F.2d 236, 241 (9th Cir.1991).
Accordingly, “[t]o succeed [on a motion for
reconsideration], a party must set forth facts or law of a
strongly convincing nature to induce the court to reverse its
prior decision.” Enriquez v. City of Fresno,
No. 1:10-cv-00581-AWI-DLB, 2011 WL 1087149, at *1 (E.D. Cal.
Mar. 23, 2011).
motion for reconsideration, plaintiff contends that the
magistrate judge's denial of appointment of counsel was
an abuse of discretion for the same reasons explained by the
Ninth Circuit Court of Appeals in Wright v. Director of
Corrections, 443 Fed.Appx. 289, 293 (9th Cir.
2011). In Wright, the Ninth Circuit
noted that in deciding whether to appoint counsel, the
district court must evaluate both (1) the likelihood of
success on the merits and (2) the ability of the plaintiff to
articulate his claims pro se in light of the complexity of
the legal issues involved. Id. (citing Terrell
v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). However,
neither of the two factors is dispositive and the court
should consider both in making a determination.
Terrell, 935 F.2d at 1017.
motion for reconsideration lacks merit. The magistrate judge
properly considered the evidence submitted by plaintiff along
with the record in this case and determined exceptional
circumstances were not demonstrated to warrant appointment of
counsel in this case, at this time. Indeed, the record in
this case demonstrates that plaintiff is adequately able to
articulate and litigate his claims in light of any complexity
in the case. See Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009) (where a pro se civil rights plaintiff
demonstrates a good handling of the general litigation
procedure and has articulated his claims adequately,
exceptional circumstances are not shown to warrant
appointment of counsel). Plaintiff's mere disagreement
the ruling does not suffice. United States v. Westlands
Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
Accordingly, plaintiff's motion for reconsideration is
the undersigned believes that a jury trial in this case would
be facilitated if plaintiff were represented by counsel. The
court is therefore attempting to determine whether pro bono
counsel may be available for appointment on plaintiff's
behalf. Plaintiff will be notified if such efforts are
upon the foregoing, 1) Plaintiff's motion for
reconsideration (Doc. No. 87) is denied;
Plaintiff's motion to stay (Doc. No. 90) is dismissed as
having been rendered moot by this order;
telephonic trial confirmation hearing set for July 31, 2017
and any filing dates in connection with it are vacated
pending the court's efforts to identify pro bono counsel
and will be rescheduled when those efforts are completed; and
trial date remains set for September 19, 2017, but may be
rescheduled if the court is successful in locating pro bono
counsel willing to undertake plaintiffs representation.