1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HENRY VASQUEZ, Case No.: 18cv2097-GPC-MDD

12 Plaintiff, ORDER DENYING PLAINTIFF'S 13 v. MOTION FOR RECONSIDERATION AND 14 N. UHDE, Correctional Officer, MOTION FOR RECUSAL OF 15 Defendant. MAGISTRATE JUDGE

16 [ECF No. 52] 17 18 Plaintiff Henry Vasquez (“Plaintiff”), a state prisoner proceeding pro se 19 and in forma pauperis, moves the Court to reconsider its August 22, 2019 20 Order denying Plaintiff’s motion for appointment of counsel. (ECF No. 52). 21 Plaintiff also moves for the recusal of Magistrate Judge Mitchell D. Dembin. 22 (Id.). For the reasons discussed herein, the Court DENIES Plaintiff’s 23 motion. 24 I. MOTION FOR RECONSIDERATION 25 A motion for reconsideration may be brought under Federal Rules of 26 Evidence 59(e) or 60(b). A motion is treated as a motion to alter or amend 1 judgment or the ruling; otherwise, it is treated as a Rule 60(b) motion for 2 relief from a judgment or order. Am. Ironworks & Erectors, Inc. v. N. Am. 3 Constr. Corp.,

, 898-99 (9th Cir. 2001). Here, the Order Plaintiff 4 seeks reconsideration of was filed on August 22, 2019. (ECF No. 48). 5 Accordingly, Plaintiff’s motion is properly brought under Rule 60(b), as it was 6 filed more than twenty-eight days ago.1 See Am. Ironworks & Erectors, Inc., 7 248 F.3d at 898-99. 8 Pursuant to Rule 60(b), district courts have the power to reconsider a 9 previous ruling or entry of judgment. Fed. R. Civ. P. 60(b). Reconsideration 10 under Rule 60(b) may be granted in the case of: (1) mistake, inadvertence, 11 surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if 12 (4) the judgment is void; (5) the judgment has been satisfied; or (6) for any 13 other reason justifying relief. See Fed. R. Civ. P. 60(b). 14 In its Order, the Court noted that although Plaintiff’s complaint 15 survived initial screening and an early summary judgment motion, his 16 “claims are not particularly complex” and he demonstrated neither 17 exceptional circumstances nor a likelihood of success on the merits. (ECF No. 18 48). Plaintiff contends the Court erred in denying his motion for appointment 19 of counsel for lack of exceptional circumstances and for failure to demonstrate 20 a likelihood of success on the merits. (ECF No. 52). He maintains that courts 21 may exercise their discretion to appoint counsel where a Plaintiff survives 22 summary judgment and that the Court’s scheduling order regulating 23 discovery and pre-trial proceedings shows Plaintiff has demonstrated a 24 likelihood of success on the merits. (Id. at 2, 4). Plaintiff further argues his 25

26 1 Plaintiff signed the proof of service more than twenty-eight days after the Order was 1 medical treatment makes it “impossible” to obtain the expert disclosures and 2 that the Court should consider his limited legal knowledge and difficulty 3 accessing the law library and research materials due to a physical disability. 4 (Id. at 3, 5, 9). 5 District courts lack authority to require counsel to represent indigent 6 prisoners in

cases. Mallard v. United States Dist. Court, 7

(1989). In exceptional circumstances, the court may 8 request an attorney to voluntarily represent such a plaintiff. See

1915(e)(1); Terrell v. Brewer,

(9th Cir. 1991). Courts 10 consider a plaintiff’s likelihood of success on the merits as well as the 11 plaintiff’s ability to articulate his claims pro se in light of the complexity of 12 the legal issues involved. Palmer v. Valdez,

(9th Cir. 2009). 13 In light of Plaintiff’s arguments, the Court focuses its analysis on exceptional 14 circumstances and Plaintiff’s likelihood of success on the merits. 15 As indicated previously, Plaintiff did survive an early motion for 16 summary judgment for exhaustion of administrative remedies, but the 17 Court’s ruling did not demonstrate a likelihood of success on the merits 18 regarding the claims against the sole remaining defendant. (See ECF No. 19 25). Rather, the Court’s ruling demonstrates that Plaintiff exhausted 20 available remedies, as required by 42 U.S.C. § 1997e(a), only as to one 21 defendant and that his claims could only proceed against Defendant Uhde. 22 (See id.). However, Plaintiff has not yet survived a motion for summary 23 judgment on the substantive merits of his claims. (See ECF No. 35 at 2 24 (setting the deadline to file pretrial motions, such as a motion for summary 25 judgment on the substantive merits, for March 6, 2020)). As such, Plaintiff 26 has not demonstrated the “exceptional circumstances” required for the Court

, at *9 (S.D. Cal. Aug. 11, 2016); Garcia v. Smith, 2 No. 10cv1187 AJB (RBB),

, at *9-10 (S.D. Cal. 3 June 27, 2012). 4 With respect to Plaintiff’s inability to obtain expert disclosures due to 5 his medical treatment, a pro se litigant’s difficulty conducting discovery is 6 insufficient to satisfy the exceptional circumstances standard. See Wilborn v. 7 Escalderon,

(9th Cir. 1986) (“If all that was required to 8 establish successfully the complexity of the relevant issues was a 9 demonstration of the need for development of further facts, practically all 10 cases would involve complex legal issues.”). Similarly, circumstances 11 common to most prisoners, such as lack of legal education, limited law library 12 access, mental illness and disability, or deficient general education, do not 13 amount to exceptional circumstances. See, e.g., Wood v. Housewright, 900

, 1335-36 (9th Cir. 1990) (affirming denial of appointment of 15 counsel where plaintiff lacked legal education and had limited law library 16 access); Galvan v. Fox, No. 2:15-CV-01798-KJM (DB),

56280, at *23 (E.D. Cal. Apr. 12, 2017) (“Circumstances common to most 18 prisoners, such as lack of legal education and limited law library access, do 19 not establish exceptional circumstances to warrant a request for voluntary 20 assistance of counsel.”); Jones v. Kuppinger, 2:13-CV-0451 WBS AC, 2015

, at *11 (E.D. Cal. Sept. 17, 2015) (“Circumstances 22 common to most prisoners, such as deficient general education, lack of 23 knowledge of the law, mental illness and disability, do not in themselves 24 establish exceptional circumstances . . . .”). 25 Accordingly, the Court DENIES Plaintiff’s motion for reconsideration. 26 II. MOTION FOR RECUSAL 1 ||Dembin” pursuant to

. (ECF No. 52 at 1, 6). Section 144 9 ||requires a party to show “personal bias or prejudice either against him or in 3 ||favor of any adverse party[.|”

. “The standard for recusal is 4 ||‘whether a reasonable person with knowledge of all the facts would conclude 5 || that the judge’s impartiality might reasonably be questioned.” Mayes v. G || Leipziger,

(9th Cir. 1984) (quoting United States v. Nelson,

, 321 (9th Cir. 1983)). To provide adequate grounds for recusal, g || the prejudice must result from an extrajudicial source as a judge’s previous 9 ||adverse ruling alone is insufficient for recusal. See

“A judge’s previous 10 ||adverse ruling alone is not sufficient bias.”

11 Here, Plaintiff does not allege facts that would support the contention 12 ||that the Undersigned exhibits bias or prejudice directed towards him or in 13 ||favor of Defendant from an extrajudicial source. Plaintiffs motion for recusal 14 alleges bias and prejudice arising out of prior rulings denying appointment of 15 |}counsel. (ECF No. 52 at 18). These are not proper grounds to disqualify a 16 ||judge for bias and prejudice. See Mayes,

. As a result, there 17 ||is no reason why a reasonable person with knowledge of all the facts would 18 question the Undersigned’s impartiality in this case. Therefore, the Court 19 || DENIES Plaintiffs motion for recusal. 20 Ill. CONCLUSION 21 Based on the foregoing, the Court DENIES Plaintiffs motion for 992 ||reconsideration and Plaintiff's motion for recusal. 23 IT IS SO ORDERED. 94 ||Dated: October 8, 2019 . Mitel 0 Son Le Hon. Mitchell D. Dembin 26 United States Magistrate Judge 27