Free Order on Motion to Appoint Counsel - District Court of Arizona - Arizona

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WO

IN THE UNITED S TATES DIS TRICT COURT FOR THE DIS TRICT OF ARIZONA

Danny M iller, Plaintiff, vs. Donald Sloan, Facility Health Administrator; Ronolfo M acabuhay, Healthcare Provider; and Richard Pratt, M edical Services Administrator, Defendants.

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No. CV-04-19-PHX-DGC (LOA) ORDER

Pending before the Court are the p art ies' motions for reconsideration of the Court's order granting partial summary judgment in Defendants' favor. Docs. ##90, 93. Also

pending is Plaintiff's motion for appointment of counsel and Defendants' motion for enlargement of time to submit the proposed final pretrial order. D ocs . ##89, 95. For the

reasons set forth below , the Court will deny the motions for reconsideration and motion for appointment of counsel and grant the motion for enlargement of time. I. The Motions for Reconsideration. Plaintiff commenced this action by filing a pro se civil right s complaint against Defendants on January 5, 2004. Doc. #1. Plaintiff alleged in an amended complaint that

Defendants violated his Eighth Amendment right s by being deliberately indifferent to his

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s erious medical needs. Doc. #50. Specifically, Plaintiff alleged that he has irritable bowel syndrome ("IBS") and that Defendants failed to renew his M etamucil and Bentyl prescriptions because they were too expensive. He also alleged t hat D efendants refused

his request for a "no spice" diet because he was not allergic to spices. Id. On December 1, 2005, the Court granted summary judgment in D efendants' favor with respect to the no spice diet and M etamucil claims and denied summary judgment with respect to the Bentyl claim. Doc. #87. Plaintiff contends that the Court erred by Doc. #90

misinterpreting facts and improperly weighing evidence in Defendants' favor.

at 2-4. Defendant s cont end that the Court erred because Plaintiff offered no evidence that he was denied Bentyl due to its costs other t han his own "self-serving" declaration. Doc. #93 at 5-6. Defendants further contend that it is unclear whether Defendants Sloan and Id. at 6. Defendants argue for the first time that "neither

Pratt remain in t he cas e.

Defendant Sloan nor Pratt were involved in prescribing, approving, or ordering Bentyl for Plaintiff[.]" Id. at 7. M otions for reconsideration are disfavored and are not t he p lace for parties to make new arguments or to ask the Court to rethink what it has already thought. See

N.W. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 925-26 (9th Cir. 1988); United States v . Rezzonico, 32 F. Supp. 2d 1112, 1116 (D. Ariz. 1998). A motion for

reconsideration may be granted if (1) the movant makes a convincing showing that the Court failed t o consider material facts presented to the Court before the order was issued, (2) there are newly discovered material facts that the movant could not have discovered through reasonable diligence before the order was issued, or (3) material facts have occurred or t he law has changed after the order was issued. See Motorola, Inc. v. J.B. Rodgers Mech. Contrs., Inc., 215 F.R.D. 581, 586 (D. Ariz. 2003); Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). The parties have not met this s t andard. They simply ask the Court to reconsider its prior rulings and, in the case of Defendants, to consider a new argument. The Court will deny the motions for reconsideration.
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II.

Plaintiff's Motion for Appointment of Counsel. In his motion for appointment of counsel, Plaintiff s t at es that he has difficulty

reading and writing because he is dyslexic. Doc. #89 at 2.

Plaintiff further states that he

knows nothing about preparing for trial, representing himself in court, or the rules and p rocedures he is required to follow. Id. Plaintiff claims that all of his filings in this cas e have been prepared with the assistance of a "jailhouse lawyer" named J.D. M errick. Id. There is no constitutional right to appointed counsel in a civil case. See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir. 1982). The Court does have

discretion to appoint counsel in "exceptional circumstances." See 28 U.S.C. § 1915(e)(1); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980). "A finding of exceptional circums t ances requires an evaluation of both `the likelihood of success on the merits and the ability of the petitioner t o articulate his or her claim pr o s e in light of the complexity of the legal issues involved.'" Wilborn, 789 F.2d at 1331(quoting Weygant v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). " N eit her of these

factors is dis p os it ive and both must be viewed together before reaching a decision on request of counsel" under section 1915(e)(1). Wilborn, 789 F.2d at 1331. The main iss ue t o be t ried in this case is whether Plaintiff was denied a Bentyl prescription due to its cost. Given the conflicting testimony , t he Court cannot conclude Nor can t he Court conclude that

that Plaintiff is likely to prevail on this issue at trial.

Plaintiff is unable to continue to litigate the issue pro se. With the as s is tance of a fellow inmate, Plaintiff has filed numerous well-writ t en documents in this case and has survived s ummary judgment on one of his claims. The Court finds that this case does not pres ent "exceptional circumstances" requiring the appointment of counsel. III. Defendants' Motion for Enlargement of Time. Pursuant to the Court's order setting final p ret rial conference, the parties are required to lodge a proposed final pretrial order by January 6, 2006. Doc. #88 ¶ 2. Counsel for Defendants moves the Court to extend this deadline to 45 days after the Court rules on the parties' motions for reconsideration. Doc. #95 at 2.
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Couns el seeks the extension

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because she will be engaged in expert depositions in January 2006 and is scheduled to be in trial in another case starting on F ebruary 14, 2006. The Court will grant the motion

because counsel has shown good cause for extending the pretrial order deadlines. IT IS ORDERED: 1. 2. 3. 4. 5. The parties' motions for reconsideration (Docs. ##90, 93) are denied. Plaintiff's motion for appointment of counsel (Doc. #89) is denied. Defendants' motion for enlargement of time (Doc. #95) is granted. The final pretrial conference shall be held on March 10, 2006 at 4:00 p.m. The parties shall lodge the proposed final pretrial order and file a joint

statement of the case and proposed voir dire questions, jury instructions, and forms of verdict by February 17, 2006. 6. The parties shall file all motions in limine by February 17, 2006. Responses

to motions in limine shall be filed by February 24, 2006. DATED this 6th day of January, 2006.

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