United States District Court, E.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION OF THE COURT'S MAY 22, 2019, ORDER
DENYING PLAINTIFF'S SECOND MOTION FOR APPOINTMENT OF
COUNSEL [ECF NO. 34]
Kevin Allen is proceeding pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Plaintiff's motion for
reconsideration of the Court's May 22, 2019, order
denying his second request for appointment of counsel.
motions are committed to the discretion of the trial court.
Rodgers v. Watt, 722 F.2d 456, 460 (9th Cir. 1983)
(en banc); Combs v. Nick Garin Trucking, 825 F.2d
437, 441 (D.C. Cir. 1987). A party seeking reconsideration
must set forth facts or law of a strongly convincing nature
to induce the court to reverse a prior decision. See,
e.g., Kern-Tulare Water Dist. v. City of Bakersfield,
634 F.Supp. 656, 665 (E.D. Cal. 1986), aff'd in part and
rev'd in part on other grounds, 828 F.2d 514 (9th Cir.
1987). Further, “ ‘[a] party seeking
reconsideration must show more than a disagreement with the
Court's decision, and
‘recapitulation…'” of that which was
already considered by the court in rendering its decision.
U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111,
1131 (E.D. Cal. 2001) (quoting Bermingham v. Sony Corp.
of Am., Inc., 820 F.Supp. 834, 856 (D N.J. 1992)).
Similarly, Local Rule 230(j) requires that a party seeking
reconsideration show that “new or different facts or
circumstances are claimed to exist which did not exist or
were not shown upon such prior motion, or what other grounds
exist for the motion[.]”
Plaintiff was previously advised, he does not have a
constitutional right to appointed counsel in this action,
Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.
1997), and the court cannot require any attorney to represent
plaintiff pursuant to 28 U.S.C. § 1915(e)(1).
Mallard v. United States District Court for the Southern
District of Iowa, 490 U.S. 296, 298 (1989). However, in
certain exceptional circumstances the Court may request the
voluntary assistance of counsel pursuant to section
1915(e)(1). Rand, 113 F.3d at 1525.
a reasonable method of securing and compensating counsel, the
Court will seek volunteer counsel only in the most serious
and exceptional cases. In determining whether
“exceptional circumstances exist, the district court
must evaluate both the likelihood of success on the merits
[and] the ability of the [plaintiff] to articulate his claims
pro se in light of the complexity of the legal issues
involved.” Id. (internal quotation marks and
denying Plaintiff's second motion for appointment of
counsel, the Court stated the following:
As with Plaintiff's prior motion for appointment of
counsel, he contends he is dyslexic, illiterate and requires
the assistance of another inmate to draft his documents.
However, the Court does not find the required exceptional
circumstances. Even if it is assumed that Plaintiff is not
well versed in the law and that he has made serious
allegations which, if proved, would entitle him to relief,
his case is not exceptional. Circumstances common to most
prisoners, such as a lack of education or limited law library
access, do not alone establish exceptional circumstances that
would warrant a request for voluntary assistance of counsel.
The legal issues present in this action are not complex.
Further, Defendant has not yet filed an answer, and at this
early stage of the proceedings, the Court cannot find that
Plaintiff is likely to succeed on the merits. Further, there
is no indication from the record that Plaintiff has been
unable to adequately articulate claims and prosecute this
action-whether alone or with inmate assistance.
(Order at 2:4-14, ECF No. 27.) Plaintiff fails to present
facts or law to warrant reconsideration of the prior denial
of appointment of counsel in this case as Plaintiff simply
repeats most of the same arguments. While the Court is
sympathetic to Plaintiffs condition and incarceration, the
test is not whether Plaintiff would benefit from the
appointment of counsel. See Wilborn v. Escalderon,
789 F.2d 1328, 1331 (9th Cir. 1986) (“Most actions
require development of further facts during litigation and a
pro se litigant will seldom be in a position to investigate
easily the facts necessary to support the case.”) The
test is whether exception circumstances exist and here, they
do not. Accordingly, Plaintiffs motion for reconsideration
shall be denied.
on the foregoing, Plaintiffs motion for reconsideration of
the Court's May 22, 2019, order denying his request ...