United States District Court, S.D. California
William Q. Hayes United States District Judge
matter before the Court is Plaintiff's Motion for
Reconsideration. (ECF No. 13).
September 7, 2019, Plaintiff Punaofo Tsquito Tilei, a state
prisoner proceeding pro se, filed a civil rights
action pursuant to 42 U.S.C. § 1983. (ECF. No. 1). On
September 7, 2019, Plaintiff filed a Motion for Leave to
Proceed in Forma Pauperis. (ECF. No. 2). On September 23,
2019, Plaintiff filed a Motion to Appoint Counsel. (ECF No.
5). On September 24, 2019, Plaintiff filed a second Motion
for Leave to Proceed in Forma Pauperis. (ECF. No. 7). On
October 15, 2019, Plaintiff filed an Emergency Request for
Preliminary Injunction. (ECF No. 9).
October 17, 2019, this Court issued an Order granting
Plaintiff's Motions to Proceed in Forma Pauperis (ECF
Nos. 2, 7) and denying Plaintiff's Motion to Appoint
Counsel (ECF No. 5).
November 7, 2019, Plaintiff filed a Motion for
Reconsideration of the Court's October 17, 2019 Order
Denying Appointment of Counsel. (ECF No. 13).
court has discretion to reconsider and vacate a prior order.
Barber v. Hawaii, 42 F.3d 1185, 1198 (9th Cir.
1994); United States v. Nutri-cology, Inc., 982 F.2d
394, 396 (9th Cir. 1992). Motions for reconsideration are
disfavored, however, and are not the place for parties to
make new arguments not raised in their original briefs.
Northwest Acceptance Corp. v. Lynnwood Equip., Inc.,
841 F.2d 918, 925-26 (9th Cir. 1988); see United States
v. Rezzonico, 32 F.Supp.2d 1112, 1116 (D. Ariz. 1998)
(“A motion for reconsideration should not be used to
ask the court ‘to rethink what the court had already
thought through-rightly or wrongly.' . . . However, if
the court has made an apparent error of law and the party
moving for reconsideration brings that error to the
court's attention within a reasonable period of time, the
district court has the power under Rule 60(b)(1) to grant
relief from that error.”).
contends he requires appointment of counsel because of his
ongoing medical issues, the complexity of his legal issues,
and “his physical incapacity to adequately advance and
prosecute his Complaint on his own.” (ECF No. 13 at 3).
to 28 U.S.C. § 1915(e)(1), “[t]he court may
request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). While there is
no right to counsel in a civil action, a court may under
“exceptional circumstances” exercise its
discretion and “request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. §
1915(e)(1); Palmer v. Valdez, 560 F.3d 965, 970 (9th
Cir. 2009). A finding of exceptional circumstances requires
the Court “to consider whether there is a
‘likelihood of success on the merits' and whether
‘the prisoner is unable to articulate his claims in
light of the complexity of the legal issues
involved.'” Harrington v. Scribner, 785
F.3d 1299, 1309 (9th Cir. 2015) (quoting Palmer, 560
F.3d at 970). “[D]ifficulties which any litigant would
have in proceeding pro se . . . do not indicate exceptional
factors.” Wood v. Housewright, 900 F.2d 1332,
1335-36 (9th Cir. 1990).
has failed to demonstrate whether there is a likelihood of
success on the merits. Cano v. Taylor, 739 F.3d
1214, 1218 (9th Cir. 2014) (affirming denial of counsel where
prisoner could articulate his claims in light of the
complexity of the issues involved, but did not show
likelihood of succeed on the merits); see also Dickey v.
Strayhorn, No. 3:17-cv-00546-JLS-JLB, 2017 WL 4271975 at
* 2 (S.D. Cal. Sept. 26, 2017) (“To demonstrate that he
has a likelihood of success at trial, Plaintiff must do more
than merely allege that one of his constitutional rights was
violated. He must provide evidence to the effect that he has
a likelihood of success on the merits of his
allegations.”); Torbert v. Gore, No.
3:14-cv-02991-BEN-NLS, 2016 WL 1399230, at *1 (S.D. Cal. Apr.
8, 2016) (“A plaintiff that provides no evidence of his
likelihood of success at trial fails to satisfy the first
factor of the [exceptional circumstances] test.”)
Court of Appeals has recognized that “any pro se
litigant certainly would be better served with the assistance
of counsel, ” and as such the Plaintiff must
“show that because of the complexity of the claims he
was unable to articulate his positions.” Rand v.
Rowland,113 F.3d 1520, 1525 (9th Cir. 1997). Plaintiff
has demonstrated in his previous filings the Court that he is
capable of conducting legal research, presenting arguments
orally in ...