Lee v. Carey et al
Filing
94
ORDER signed by District Judge Kimberly J. Mueller on 6/23/2011 ORDERING Because plaintiff has not shown good cause for reconsideration of the order adopting the F & R's, pltf's request 91 is DENIED; pltf has also requested that the court order a settlement conference 89 ; the court has previously ordered a mediation, which did not result in settlement 65 ; pltf does not explain why an additional settlement conf may be fruitful. The motion for court assisted settlement is DENIED; F inally, pltf moved to withdraw his previous motion for appointment of counsel because "it would benefit pltf in his motion for appeals" 86 ; Nothing before the court suggests that appointment of counsel is warranted to ensure that pltf's case is fairly tried to the jury; the court will surely not force counsel upon pltf; pltf's to withdraw his previous motion for counsel is GRANTED. (Reader, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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GEORGE LEE,
Plaintiff,
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No. CIV S-06-0813 KJM EFB (TEMP) P
vs.
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THOMAS CAREY, et al.,
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Defendants.
ORDER
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Plaintiff has requested an extension of time to file objections to findings and
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recommendations issued on September 9, 2009, and then adopted on November 12, 2009.
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A district court may reconsider a ruling under either Federal Rule of Civil Procedure 59(e) or
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60(b). See Sch. Dist. Number. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262 (9th
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Cir. 1993). “Reconsideration is appropriate if the district court (1) is presented with newly
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discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or
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(3) if there is an intervening change in controlling law.” Id. at 1263. While plaintiff provides
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information suggesting he was medically unavailable during the objection period in 2009, he has
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not demonstrated that he was unable to request reconsideration before now; the court notes that
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plaintiff was able to file documents in December 2009, and thereafter. Because plaintiff has not
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shown good cause for reconsideration of the order adopting the findings and recommendations,
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plaintiff’s request filed June 15, 2011 (ECF 91) is denied.
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Plaintiff has also requested that the court order a settlement conference. (ECF 89.)
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The court has previously ordered a mediation, which did not result in settlement. (ECF 65.)
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Plaintiff does not explain why an additional settlement conference may be fruitful. The motion
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for court assisted settlement is denied.
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Finally, plaintiff moved to withdraw his previous motion for appointment of
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counsel because “it would benefit plaintiff in his motion for appeals”. (ECF 86.) Somewhat
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confusingly, plaintiff provides some evidence of sleep apnea to support his claim that he suffers
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from daytime somnolence and appointment of counsel is warranted. The United States Supreme
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Court has ruled that district courts lack authority to require counsel to represent indigent
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prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In
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certain exceptional circumstances, the court may request the voluntary assistance of counsel
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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);
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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). Nothing before the court
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suggests that appointment of counsel is warranted to ensure that plaintiff’s case is fairly tried to
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the jury; the court will surely not force counsel upon plaintiff. Plaintiff’s motion to withdraw his
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previous motion for counsel is granted.
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IT IS SO ORDERED.
DATED: June 23, 2011.
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UNITED STATES DISTRICT JUDGE
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