United States District Court, N.D. California
ORDER DENYING MOTION TO ALTER OR AMEND JUDGMENT;
DENYING MOTION TO STRIKE APPEAL AS UNNECESSARY (DOCKET NOS.
147, 151)
BETH
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
Plaintiff,
a California inmate, filed the instant pro se civil
rights action pursuant to 42 U.S.C. § 1983 against
prison officials at various institutions, including Defendant
Dr. B. Deal at San Quentin State Prison ("SQSP").
On September 10, 2019, the Court granted Defendant's
motion for summary judgment and dismissed Plaintiffs Eighth
Amendment deliberate indifference claim; judgment was entered
the following day. (Docket Nos. 145, 146.) Plaintiff has
filed a motion to alter or amend judgment, which the Court
construes as a motion for reconsideration. (Docket No. 147.)
Where
the court's ruling has resulted in a final judgment or
order (e.g., after dismissal or summary judgment motion), a
motion for reconsideration may be based either on Rule 59(e)
(motion to alter or amend judgment) or Rule 60(b) (motion for
relief from judgment) of the Federal Rules of Civil
Procedure. See Am. Ironworks & Erectors v. N. Am.
Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). A
motion for reconsideration under Rule 59(e) '"should
not be granted, absent highly unusual circumstances, unless
the district court is presented with newly discovered
evidence, committed clear error, or if there is an
intervening change in the law.'" McDowell v.
Calderon, 197 F.3d 1253, 1255 (9th Cir. 1999) (citation
omitted) (en banc). The denial of a motion for
reconsideration under Rule 59(e) is construed as a denial of
relief under Rule 60(b). Id. at 1255 n.3 (9th Cir.
1999) (citation omitted) (en banc). Rule 59(e) is used for a
substantive change of mind by the court while Rule 60(a)
should be used when the court has made an error in execution
that requires the judgment to be corrected to implement the
intended purpose. Tattersalls, Ltd., v. DeHaven, 745
F.3d 1294, 1299 (9th Cir. 2014).
Motions
for reconsideration should not be frequently made or freely
granted; they are not a substitute for appeal or a means of
attacking some perceived error of the court. See
Twentieth Century - Fox Film Corp. v. Dunnahoo, 637 F.2d
1338, 1341 (9th Cir. 1981). '"[T]he major grounds
that justify reconsideration involve an intervening change of
controlling law, the availability of new evidence, or the
need to correct a clear error or prevent manifest
injustice.'" Pyramid Lake Paiute Tribe of
Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989)
(quoting United States v. Desert Gold Mining Co.,
433 F.2d 713, 715 (9th Cir. 1970)).
Plaintiff
asserts the following grounds for reconsideration under Rule
59(e): (1) the Court never ruled on his motion for
reconsideration; (2) the Court incorrectly divided the case
into two separate matters when the claims against him arose
out of a series of transactions under Rule 20(a); (3)
Plaintiff never asserted in his amended complaint or his 602
that Defendant Deal was solely responsible for discontinuing
his tramadol medication; and (4) the Court never granted his
motions for counsel despite exceptional circumstances.
(Docket No. 147 at 2.)
With
respect to the first grounds, the Court ruled on Plaintiffs
motion for leave to file a motion for reconsideration on
February 5, 2019. (Docket No. 119.) The docket indicates that
a copy of this order that was sent to Plaintiff was returned
as undeliverable on March 4, 2019, with the indication that
"inmate refused." (Docket No. 121.) Plaintiff shall
be provided with a copy of that February 5, 2019 order along
with a copy of this order. Accordingly, Plaintiff is simply
mistaken in believing that the Court never ruled on his
motion for reconsideration, and this grounds is without
merit.
Secondly,
the Court did not err in separating the matter into two
separate claims because Defendants did not work at the same
institution: Defendant Deal was at San Quentin State Prison
("SQSP"), and Defendant Thomas was at Pelican Bay
State Prison ("PBSP"). (Docket No. 107 at 1-2.)
Accordingly, Plaintiff s assertion that the claims against
these Defendants arose out of the same series of transactions
under Federal Rule of Civil Procedure Rule 20(a) is not
convincing, where the acts occurred at separate institutions
and at different times; Defendant Dr. Deal allegedly tapered
Plaintiff off tramadol in June 2014, and Defendant Thomas
allegedly discontinued his medications after Plaintiff
arrived at PBSP in April 2016. Accordingly, this second
grounds is no basis for granting reconsideration.
With
regards to the third grounds set forth, it also fails to
establish clear error by the Court. In granting
Defendants' first summary judgment motion based on
exhaustion, the Court found that Plaintiff had only exhausted
two claims: a claim against Defendant Deal at SQSP, and a
claim against Defendant Thomas at PBSP. (Docket No. 104 at
15-16, 21-22.) Accordingly, the claims against all the other
named SQSP Defendants, Alvarez, Devers, Lee, Leighton, Pratt,
Rivero, Tootell, and Wu, were properly dismissed for failure
to exhaust administrative remedies. (Id. at 13-14.)
Even if there were other medical staff involved in Plaintiffs
pain management, Plaintiff could not pursue those claims
because of his failure to exhaust. There was no error by the
Court in this regard.
Lastly,
with respect to the appointment of counsel, the Court did not
err in denying the motion for lack of exceptional
circumstances. Plaintiffs reasons for appointment of counsel
included the following: the issues in the case are complex,
he has limited access to the library and legal resources, he
has limited knowledge of the law, and because he has serious
medical and mental health issues. (Docket Nos. 9, 59, 105,
109.) Plaintiff was repeatedly advised that there is no
constitutional right to counsel in a civil case unless an
indigent litigant may lose his physical liberty if he loses
the litigation. See Lassiter v. Dep't of Social
Services, 452 U.S. 18, 25 (1981); Rand v.
Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997) (no
constitutional right to counsel in § 1983 action),
withdrawn in part on other grounds on reh'g en
banc, 154 F.3d 952 (9th Cir. 1998) (en banc). The
decision to request counsel to represent an indigent litigant
under § 1915 is within "the sound discretion of the
trial court and is granted only in exceptional
circumstances." Franklin v. Murphy, 745 F.2d
1221, 1236 (9th Cir. 1984).
The
circumstances described by Plaintiff are not
"exceptional" as they are like those faced by other
prisoner litigants, and the claims presented were not
especially complex. With respect to Plaintiffs assertion of
serious medical and mental health issues, generally, a
plaintiff that shows at least some ability to articulate his
claims is not entitled to appointment of counsel, regardless
of whether he has mental and physical health problems or is
incarcerated. See, e.g., Warren v. Harrison, 244
Fed.Appx. 831, 832 (9th Cir. 2007) (holding that an inmate
plaintiff who had alleged mental illness did not qualify for
appointment of counsel because he competently presented his
claims and attached three pertinent exhibits); Miller v.
McDaniel, 124 Fed.Appx. 488, 490 (9th Cir. 2005)
(holding that an inmate plaintiff with mental health problems
was not entitled to appointment of counsel because he
demonstrated an ability to articulate his claims pro se);
Palmer v. Valdez, 560 F.3d 965, 970 (2009) (holding that
an inmate plaintiff who was suffering pain from a surgery and
had limited access to legal documents did not require
appointment of counsel because he did a good job presenting
his case, was well organized, made clear points, and
presented evidence effectively). Despite Plaintiffs mental
health issues, he consistently showed an ability to
articulate his claims and diligently pursue this action.
Accordingly, the Court did not err in denying Plaintiffs
motions for appointment of counsel for lack of exceptional
circumstances.
Based
on the foregoing, the Court finds no basis for granting this
motion for reconsideration where Plaintiff has failed to show
an intervening change of controlling law, the availability of
new evidence, or the need to correct a clear error or prevent
manifest injustice. See Hodel, 882 F.2d at 369 n.5.
Accordingly, the motion for reconsideration is
DENIED. (Docket No. 147.)
Plaintiff
filed a motion to strike his notice of appeal, (Docket No.
149), and an extension of thirty days to refile it because it
was prematurely filed. (Docket No. 151.) The Court notes that
the Ninth Circuit issued an order finding that Plaintiffs
notice of appeal is ineffective until entry of the order
disposing of Plaintiff s motion for reconsideration by the
Court. (Docket No. 152.) The Ninth Circuit ordered the matter
held in abeyance pending this Court's resolution of
Plaintiff s motion and instructed Plaintiff to file an
amended notice of appeal "within the time prescribed by
Federal Rule of Appellate Procedure 4." (Id.)
This order disposes of Plaintiff s motion. Accordingly,
Plaintiff is directed to proceed on appeal in accordance with
the Ninth Circuit's order. His motion to strike the
appeal is DENIED as unnecessary.
The
Clerk of the Court shall send a copy of this order to the
Ninth Circuit. The Clerk shall enclose a copy of the
Court's February 5, 2019 order, (Docket ...