United States District Court, D. Arizona
ORDER
Hon.
David C . Bury, United States District Judge
On
September 13, 2019, Plaintiff filed a Motion for Appointment
of Counsel (Doc. 90) and a Dispositive “Motion on Court
Order: There are no Administration Directors Orders in the
Dept. of Corrections in the Matter of Retaliation by the
Director of Department of Corrections Wardens:
Reconsideration and Review (Doc. 91). Both motions pertain to
the Court’s granting of the Motion for Summary Judgment
filed by Defendant Jacobs on November 19, 2018, which alleged
the Plaintiff failed to exhaust Count 3. (Doc. 73.)
In
Count III, Plaintiff alleged that he was transferred to a
higher custody prison yard three days after he spoke to
Defendant, Nurse Watson about his medical issues, which he
had previously discussed with Deputy Warden Jacobs at an
earlier, unspecified time. He claimed he was transferred in
retaliation for filing grievances and threatening litigation.
After the Court denied a Motion to Dismiss based on
exhaustion, Defendant Jacobs reurged exhaustion through a
Motion for Summary Judgment.
The
Prisoner Litigation Reform Act (PLRA) mandates exhaustion of
administrative remedies prior to suit for all inmate claims
“brought with respect to prison conditions under
section 1983 of this title, or any other Federal law.”
42 U.S.C. §1997e(a); Porter v. Nussle, 534 U.S.
516, 524 (2002). Exhaustion of all remedies for all claims is
a prerequisite to suit. Booth v. Churner, 532 U.S.
731, 739-741 (2001); Porter, 534 U.S. at 524. There
are, however, instances where remedies may be rendered
effectively unavailable and a prisoner is excused from the
PLRA exhaustion requirement. See, e.g., McBride v.
Lopez, 807 F.3d 982, 987 (9th Cir. 2015) (threat of
retaliation can render grievance process effectively
unavailable and excuse a prisoner’s failure to
exhaust); Nunez v. Duncan, 591 F.3d 1217,
1224–26 (9th Cir. 2010) (warden’s mistake
rendered administrative remedies “effectively
unavailable”); Marella v. Terhune, 568 F.3d
1024, 1027–28 (9th Cir. 2009) (per curiam) (remedies
unavailable if prisoner does not have access to the necessary
grievance forms).
The
Court granted summary judgment for Defendant Jacobs because
she presented evidence that there was an administrative
remedy available to the Plaintiff, and he failed to present
any evidence to create a material genuine issue of fact that
his attempts to exhaust administrative claims were thwarted
by prison officials. (Order (Doc. 88) at 5-7.)
To the
extent the Plaintiff’s recent motions argue that the
Court ruled on Jacob’s Motion for Summary Judgment
without allowing him sufficient discovery, the Court notes
that prior to the filing of the dispositive motion, the Court
issued an Order responsive to the Plaintiff’s
“Motion the Court to Object to the defendant’s
request for Production and Non-uniform interrogatories . .
.” (Motion (Doc. 67) at 2), ordering the following:
1) Plaintiff shall have 30 days to serve no more tha[n] 10
interrogatories, including subparts, on Defendant Jacobs; 2)
Defendant Jacobs shall have 14 days to answer the
interrogatories and shall file a Notice of Response to
Interrogatories with the Court; 3) Defendant Jacobs shall
provide Plaintiff with copies of any grievances and responses
as directed herein within 14 days of the filing date of this
Order; 4) Plaintiff shall file a Response to the Motion for
Summary Judgment by June 5, 2019, and 5) failure to file a
Response may result in the Court granting the Motion for
Summary Judgment and NO FURTHER EXTENSIONS OF TIME SHALL BE
GRANTED.
(Order (Doc. 78) at 2-3.)
In
short, the Court ensured that the Plaintiff had an
opportunity to gather evidence to support his claim against
Defendant Jacobs, especially the Court required the Defendant
to provide Plaintiff with copies of grievances and responses
filed during the relevant time period and/or related to the
retaliation claim. See (Defendant Notice of
Compliance (Doc. 81)). It now appears that Plaintiff never
tendered the interrogatories. (Doc. 87) at 3.) On July 23,
2019, the Court granted Defendant Jacob’s Motion for
Summary Judgment and dismissed Count 3. (Order (Doc. 88).)
The
Court turns to the Plaintiff’s recently filed motions.
To the extent he seeks reconsideration of the Court’s
grant of summary judgment for Defendant Jacobs on the
retaliation claim, Count 3, it is denied. Motions to
reconsider are appropriate only in rare circumstances:
The motion to reconsider would be appropriate where, for
example, the court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to
the court by the parties, or has made an error not of
reasoning but of apprehension. A further basis for a motion
to reconsider would be a controlling or significant change in
the law or facts since the submission of the issue to the
court.
Above the Belt, Inc. v. Mel Bohannan Roofing, Inc.,
99 F.R.D. 99, 101 (E.D. Va. 1983); see also, Sullivan v.
Faras-RLS Group, Ltd., 795 F.Supp. 305, 308-09 (D. Ariz.
1992). Such problems rarely arise, id., and have not
arisen here.
The
remainder of the Plaintiff’s arguments in the two
recently filed motions pertains to reasons why the Court
should appoint counsel. The advanced nature of this case
reflects that the Plaintiff is capable of communicating his
arguments to the Court. The Court reviewed his Response to
the Motion to Dismiss (Doc. 25), a motion upon which he
prevailed. The Court reviewed his Response to the Motion for
Summary Judgment. (Doc. 86.) Both reflect that he can
sufficiently represent himself during the dispositive motion
phase of the case. As his two recent motions reflect, he is
capable of asking for clarification when needed as to how to
proceed.
There
is no constitutional right to the appointment of counsel in a
civil case. See, Ivey v. Board of Regents of University
of Alaska, 673 F.2d 266, 269 (9th Cir. 1982);
Randall v. Wyrick, 642 F.2d 304, 307 n. 6 (8th Cir.
1981). The appointment of counsel in a civil rights case is
required only when exceptional circumstances are present.
Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.
1980); Wilborn v. Escalderon, 789 F.2d 1328, 1331
(9th Cir. 1986). A determination with respect to exceptional
circumstances requires an evaluation of the likelihood of
success on the merits as well as the ability of a plaintiff
to articulate his claims pro se in light of the complexity of
the legal issues ...