United States District Court, D. Oregon
Jacob Barrett #72237, North 3A-Q-107 Penitentiary of New Mexico, Pro Se Plaintiff.
Shannon M. Vincent, OREGON DEPARTMENT OF JUSTICE, Trial Division, CLS, Salem, OR, Attorney for Defendants.
OPINION & ORDER
MARCO A. HERNANDEZ, District Judge.
Plaintiff Jacob Barrett, appearing pro se and proceeding in forma pauperis ("IFP"), filed two motions that are currently before this Court: a motion for appointment of counsel  and a motion for reconsideration of my November 14, 2013, Opinion & Order . For the reasons set forth below, I GRANT Plaintiff's motion for appointment of counsel and DENY Plaintiff's motion for reconsideration.
Plaintiff Jacob Barrett is an inmate of the Oregon Department of Corrections ("ODOC") and is currently in the custody of the Florida Department of Corrections. Plaintiff was previously in the custody of the New Mexico Corrections Department ("NMCD") and while there, sent an envelope with a drawing on it to his cousin who was an inmate at the Oregon State Penitentiary ("OSP"). Because Plaintiff's mailing violated ODOC's policy precluding envelopes with drawings on them, Plaintiff's mailing was returned. Plaintiff alleges that Defendants violated his First Amendment free speech rights and his Fourteenth Amendment due process rights when they rejected his mailing.
Defendants filed a motion for summary judgment on all of Plaintiff's claims. I concluded in my November 14, 2013, Opinion & Order that Defendants were entitled to qualified immunity insofar as Plaintiff sought money damages. I, however, denied Defendants' motion for summary judgment as to Plaintiff's First Amendment free speech claim, which alleges that Defendants violated Plaintiff's First Amendment free speech rights when they rejected his envelope containing a drawing on it.
I. Motion for Counsel
When a plaintiff is proceeding IFP, as here, the district court "may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). There is no constitutional right to counsel in a civil case, and 28 U.S.C. § 1915 does not "authorize appointment of counsel to involuntary service." U.S. v. 30.64 Acres of Land, More or Less, Situated in Klickitat Cnty., State of Wash. , 795 F.2d 796, 801 (9th Cir. 1986). Pursuant to 28 U.S.C. § 1915(e)(1), "the decision to appoint... counsel is within the sound discretion of the trial court and is granted only in exceptional circumstances." Agyeman v. Corrections Corp. of Am. , 390 F.3d 1101, 1103 (9th Cir. 2004) (internal quotation marks and citation omitted). "A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims in light of the complexity of the legal issues involved." Id . "Neither of these considerations is dispositive and instead must be viewed together." Palmer v. Valdez , 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted).
II. Motion for Reconsideration
Rule 60 of the Federal Rules of Civil Procedure allows a party to file a motion seeking relief from a final judgment or order. Fed.R.Civ.P. 60(b). "A district court may properly reconsider its decision if it (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." Smith v. Clark Cnty. Sch. Dist. , 727 F.3d 950, 955 (9th Cir. 2013) (internal quotation marks and citation omitted). "Clear error occurs when the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed." Id . The Ninth Circuit has cautioned that Rule 60 "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment." Harvest v. Castro , 531 F.3d 737, 749 (9th Cir. 2008) (citations and internal quotation marks omitted).
I. Motion for Appointment ...