United States District Court, S.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR
RECONSIDERATION ON ORDER DENYING PLAINTIFF'S MOTION TO
APPOINT COUNSEL [ECF NO. 166]
Honorable Allison H. Goddard United States Magistrate Judge
the Court is Plaintiff Raymond Alford Bradford's
(“Plaintiff”) motion objecting to the Court's
order denying his motion to appoint counsel (ECF No. 156),
which the Court construes as a motion for reconsideration.
ECF No. 166. For the reasons set forth below, the Court
DENIES Plaintiff's motion.
PLAINTIFF'S MOTION FOR RECONSIDERATION IS
to Civil Local Rule 7.1(i)(2), any motion for reconsideration
must be filed within 28 days after the entry of the order
sought to be reconsidered. Here, the Court entered its order
denying Plaintiff's original motion to appoint counsel on
August 12, 2019. ECF No. 156. Thus, Plaintiff's motion
for reconsideration was due on September 9, 2019.
Plaintiff's motion for reconsideration is dated September
1, 2019, it was not received by the California State Prison
until September 28, 2019, and therefore it was not received
by the Clerk's Office until October 4, 2019.
Compare ECF No. 166 at 1 with ECF No. 166
at 14. Courts have denied motions for consideration when they
are untimely. See, e.g., Tillisy v. Wash.
Dep't of Corr., No. 3:18-cv-5695-RJB-JRC, 2019 U.S.
Dist. LEXIS 142561, at *1 (W.D. Wash. Aug. 21, 2019) (denying
a pro se inmate's motion for reconsideration of
an order denying appointment of counsel because it was
EVEN IF TIMELY, PLAINTIFF'S MOTION FAILS ON THE
Plaintiff's motion is untimely, the Court has considered
the merits of Plaintiff's request as other courts have
done. See, e.g., Castro v. Ressing, No.
S-11-2253-KJM-KJN-P, 2012 U.S. Dist. LEXIS 51165, at *1 (E.D.
Cal. Apr. 11, 2012) (addressing the merits briefly even
though the motion for reconsideration was untimely);
Coleman v. Evergreen Pub. Sch., No. C18-556-RBL,
2018 WL 5886452, at *1 (W.D. Wash. Nov. 9, 2018) (same).
However, even if Plaintiff's motion for reconsideration
was timely, it would still fail.
Reconsideration is an “extraordinary remedy, to be used
sparingly.” Carroll v. Nakatani, 342 F.3d 934,
945 (9th Cir. 2003); Kona Enters., Inc. v. Estate of
Bishop, 229 F.3d 877, 890 (9th Cir. 2000). A motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the court is “presented with
newly discovered evidence, committed clear error, or if there
is an intervening change in the controlling law.”
Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH &
Co., 571 F.3d 873, 880 (9th Cir. 2009) (citation
omitted); see also CivLR 7.1(i)(1) (stating that the
party seeking relief must present “what new or
different facts and circumstances are claimed to exist which
did not exist, or were not shown, upon such prior
application”). “A motion for reconsideration may
not be used to raise arguments or present evidence for the
first time when they could reasonably have been raised
earlier in the litigation.” Marlyn
Nutraceuticals, 571 F.3d at 880 (citation and internal
quotation marks omitted); United States v. Westlands
Water District, 134 F.Supp.2d 1111, 1131 (E.D. Cal.
2001) (stating that “a motion for reconsideration is
not a vehicle to reargue the motion”).
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.” Westlands
Water District, 134 F.Supp.2d at 1131; see also
Coleman v. Evergreen Pub. Sch., No. C18-556-RBL, 2018 WL
5886452, at *1 (W.D. Wash. Nov. 9, 2018) (stating that a
motion for reconsideration is not “intended to provide
litigants with a second bite at the apple. . . . Mere
disagreement with a previous order is an insufficient basis
Plaintiff contends that his motion to appoint counsel (ECF
No. 152) should have been granted because (1) Plaintiff has
been declared mentally insane; (2) Plaintiff is likely to
succeed on the merits; (3) the case is complex; and (4)
Plaintiff is indigent. ECF No. 166 at 1. In Plaintiff's
original motion to appoint counsel, counsel made similar
arguments. Plaintiff contended that he was declared mentally
insane and on involuntary psychotropic medication, and that
the issues in the case are complex. ECF No. 152 at 1.
Plaintiff also stated that the Defendant “is
responsible” for his RICO, “Heck Rule, ”
and state law stolen property claims, which the Court
construes as asserting that his claims are valid and thus
likely to succeed. Id.; see, e.g.,
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.
1987). Therefore, the only new contention Plaintiff makes
in his motion for reconsideration is that he is indigent.
Plaintiff filed his motion to proceed in forma
pauperis on December 26, 2017 (ECF No. 16),
Plaintiff's indigence is not a recent occurrence to be
construed as “new or different circumstances”
under which to request reconsideration. See CivLR
7.1(i)(1); Marlyn Nutraceuticals, 571 F.3d at 880. A
party seeking reconsideration must show more what “was
already considered by the Court in rendering its
decision.” Westlands Water District, 134
F.Supp.2d at 1131.
even if Plaintiff s indigence was a new circumstance, it
still does not entitle Plaintiff to counsel. No
constitutional right to counsel exists for an indigent
plaintiff in a civil case unless the plaintiff may lose his
physical liberty if he loses the litigation. See Lassiter
v. Dept. of Social Servs.,452 U.S. 18, 25 (1981). Only
under “exceptional circumstances” may a court
exercise its discretion and appoint counsel for indigent
civil litigants. Palmer v. Valdez,560 F.3d 965, 970
(9th Cir. 2009); Agyeman v. Corrs. Corp. of Am., 390
F.3d 1101, 1103 (9th Cir. 2004). Indigence alone is not an
exceptional circumstance. Weygandt v. Look, 718 F.2d
952, 954 (9th Cir. 1983) (stating that “exceptional
circumstances” include a likelihood of success on the
merits and the inability of the plaintiff to articulate his
claims pro se in light of the complexity of the
legal issues involved); see, e.g., Arrellano v.
Hodge, No. 14-cv-590-JLS-JLB, ...