United States District Court, D. Arizona
Eulandas J. Flowers, Plaintiff,
Sandra Lawrence, et al., Defendants.
A. Teilborg Senior United States District Judge
before the Court is Plaintiff Eulandas J. Flowers' Motion
to Amend/Correct the Clerk's Judgment. (Doc. 183).
Plaintiff's motion is in response to the Court's
August 18, 2016, Order entering judgment in favor of
Defendants and terminating the case, (Docs. 175, 176, 177),
on the grounds that Plaintiff failed to exhaust his available
administrative remedies in accordance with the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(a) (2012) (the
“PLRA”). This finding was premised on evidence
presented to the Court during a bench trial held on June 16,
17, and August 2, 2016. Plaintiff takes exception to the
Court's finding, and seeks amendment. Having considered
Plaintiff's filing, the Court now rules on the
motion seeks post-judgment relief under Federal Rule of Civil
Procedure 59(e), a provision enacted to allow litigants to
seek substantive change to a judgment entered by the
Court. Indeed, the Rule's drafters intended
Rule 59(e) to “mak[e] clear that the district court
possesses the power to rectify its own mistakes in the period
immediately following the entry of judgment.”
Maxwell v. Sherman, 2016 U.S. Dist. LEXIS 61852, at
*3 (E.D. Cal. May 9, 2016) (quoting White v. New
Hampshire Dep't of Employment Sec., 455
U.S. 445, 450 (1982)).
Rule 59(e) permits a district court to reconsider and amend a
previous order, the rule offers an ‘extraordinary
remedy, to be used sparingly in the interests of finality and
conservation of judicial resources.'” Kona
Enters. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000) (citation omitted). “[A] motion for
reconsideration should not be granted, absent highly unusual
circumstances, unless the district court is presented with
newly discovered evidence, committed clear error,
if there is an intervening change in the controlling
law.” Id. (quoting 389 Orange Street
Partners, 179 F.3d 656, 665 (9th Cir.
1999)). “A Rule 59(e) motion may
not be used to raise arguments or present evidence
for the first time when they could reasonably have been
raised earlier in the litigation.” Id.
(emphasis in original).
motion contends that the Court clearly erred in finding that
he failed to satisfy the requirements of the PLRA, a theory
resting on two arguments. Plaintiff argues that: (1) he
utilized all available administrative remedies, and (2) that
he should have been represented by counsel at the bench
trial. The Court begins by addressing the latter.
Denial of Plaintiff's Motion to Appoint Counsel
is no constitutional right to the appointment of counsel in a
civil case. See Palmer v. Valdez, 560 F.3d 965, 970
(9th Cir. 2009); Johnson v. U.S. Dep't of
Treasury, 939 F.2d 820, 824 (9th Cir. 1991). But the
Court may request that counsel represent an indigent civil
litigant pursuant to 28 U.S.C. § 1915(e)(1) (2012) under
“exceptional circumstances.” Palmer,
560 F.3d at 970 (quoting Agyeman, 390 F.3d at 1103).
On May 6, 2016, the Court set the issue of exhaustion under
the PLRA for bench trial. (Doc. 116). On May 12, 2016, the
Court then denied a pending Motion to Appoint Counsel. (Doc.
117). In this Order, the Court specifically noted that
Plaintiff's request deserved close scrutiny, as a
disputed material fact existed and the forthcoming bench
trial would require Plaintiff to “handle issues of
conflicting testimony and credibility on his own.”
(Doc. 117 at 3). After more closely scrutinizing
Plaintiff's request, the Court found both that the
structure of the bench trial would allow the Court to
“take special precautions to ‘avoid undue
prejudice to the pro se litigant, '” (id.
at 4 (citation omitted)), and that Plaintiff had demonstrated
ample ability to competently prosecute his own civil case in
light of its complexities. (Id. at 3). Thus, the
“exceptional circumstances that might require
appointment of counsel [we]re not present, ” and
Plaintiff's motion was denied. (Id. at 4).
reliance on this basis in support of his pending motion is
improper. The Court denied Plaintiff's most recent Motion
to Appoint Counsel on May 12, 2016. (Doc. 117). A motion to
reconsider this Order pursuant to Local Rule
7.2(g) was due within fourteen days of the
Order's issuance. Plaintiff filed no such motion, and did
not thereafter renew his efforts to request appointment of
counsel. Re-litigation of this issue is both untimely and
falls outside of the scope of review of the Court's
August 18, 2016, Order. It is not a proper basis to support
amending the judgment under Rule 59(e).
even if the Court were to consider Plaintiff's argument,
it is not persuasive. Plaintiff relies primarily on Solis
v. County of Los Angeles, 514 F.3d 946, 958 (9th Cir.
2008), asserting that because the mechanism of a bench trial
was used to adjudicate the issue of exhaustion, Plaintiff
needed legal representation as he is “ill-suited to
conduct a trial.” (Doc. 183 at 4-5). But the court in
Solis did not hold that the plaintiff was entitled
to legal representation. Rather, the Ninth Circuit held that
“the district court failed to articulate its reasons
for denying” the plaintiff's request for counsel,
and remanded for the district court to “reconsider his
request, ” taking into account the fact that the
plaintiff was incarcerated, had no legal training, possessed
an eighth grade education, and would be required to litigate
his case before a jury. Solis, 514 F.3d at 958.
the Court provided ample reasoning in its May 12, 2016, Order
to support its finding that Plaintiff failed to make the
necessary showing to justify a request for counsel under 28
U.S.C. § 1915(e)(1). (See Doc. 117 at 2-5).
Moreover, the trial at issue in Solis was a jury
trial, whereas a bench trial was held in the instant matter,
allowing the Court to enact appropriate measures to ensure
that Plaintiff was not subjected to undue prejudice. And, as
the Court noted in the May 12 Order, Plaintiff has
demonstrated ample ability to intelligently argue his
position in light of the complexity of the legal issues
involved. Having observed Plaintiff's conduct during
trial, the Court's finding has been bolstered
significantly. Plaintiff displayed a keen ability to carry
out both direct examination of himself and cross-examination
of Defendants' witnesses, he displayed sound knowledge of
the facts of his case, the PLRA, as well as ADOC internal
regulations, and he made succinct, cogent arguments in his
favor, acquitting himself exceptionally well as a pro se
now-seeking post-judgment relief-Plaintiff has not
demonstrated an inability “to articulate his claims pro
se in light of the complexity of the legal issues
involved.” Palmer, 560 F.3d at 970 (citation
omitted). The “exceptional circumstances, ”
necessary to grant a request under 28 U.S.C. §
1915(e)(1) are not present. Plaintiff's argument is both
improper and unpersuasive.
Satisfaction of Available ...