(PC) Thomas v. Roberts
2:16-cv-00724
E.D. Cal.Dec 5, 2016Background
- Plaintiff Josh Thomas, a California state prisoner proceeding pro se, filed a motion construed as reconsideration of the court’s October 21, 2016 order dismissing his complaint with leave to amend.
- Plaintiff previously consented to magistrate judge jurisdiction under 28 U.S.C. § 636(c) on April 21, 2016.
- Plaintiff’s November 22, 2016 filings requested: reconsideration of the dismissal, withdrawal of consent to magistrate judge jurisdiction, an extension of time to file an amended complaint, and appointment of counsel.
- The court reviewed reconsideration standards under Fed. R. Civ. P. 59(e)/60(b) and the Ninth Circuit’s standard for reconsideration (ACandS).
- The court found no newly discovered evidence, no intervening change in controlling law, and no clear error in its prior order; it also found no extraordinary circumstances to vacate magistrate jurisdiction and no exceptional circumstances to appoint counsel.
- The court denied reconsideration and withdrawal of consent, granted a 30-day extension to file an amended complaint (failure to amend will result in dismissal), and denied appointment of counsel.
Issues
| Issue | Plaintiff's Argument | Defendant/Court Argument | Held |
|---|---|---|---|
| Motion for reconsideration of dismissal | October 21 order was erroneous and should be reconsidered | No newly discovered evidence, no change in law, no clear error; review of record supports original dismissal | Denied |
| Withdrawal of consent to magistrate judge jurisdiction | Wants to vacate prior consent to §636(c) magistrate jurisdiction | Reference can be vacated only for extraordinary circumstances; none shown | Denied |
| Extension of time to file amended complaint | Requests additional time to file amended complaint | Good cause exists for extension | Granted (30 days to file) |
| Appointment of counsel | Requests court to appoint counsel to represent him | Appointment under 28 U.S.C. §1915(e)(1) reserved for exceptional circumstances; consider likelihood of success and ability to litigate pro se; ordinary incarceration difficulties insufficient | Denied (no exceptional circumstances at this stage) |
Key Cases Cited
- Sch. Dist. Number 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993) (standards for reconsideration: newly discovered evidence, clear error/manifest injustice, or intervening change in law)
- Mallard v. United States Dist. Court, 490 U.S. 296 (1989) (court cannot compel counsel to represent an indigent litigant)
- Palmer v. Valdez, 560 F.3d 965 (9th Cir. 2009) (standard for appointment of counsel in §1915(e)(1): exceptional circumstances evaluated by likelihood of success and plaintiff’s ability to articulate claims)