United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER RE: MOTION TO
RECONSIDER ORDER ON MOTION TO COMPEL (DKT. 64); MOTION FOR
COUNSEL (DKT. 67) AND MOTION FOR LEAVE OF THE COURT TO
“STAY” DEFENDANTS' SECOND AMENDED NOTICE OF
DEPOSITION OF PLAINTIFF (DKT. 68)
Honorable Candy W. Dale, United States Magistrate Judge
before the Court are three motions filed by Plaintiff Brad
Vanzant: (1) Motion to Reconsider Order on Motion to Compel
(Dkt. 64); (2) Motion to Appoint Counsel (Dkt. 67); and (3)
Motion for Leave of the Court to “Stay”
Defendants' Second Amended Notice of Deposition of
Plaintiff (Dkt. 68). The motions are ripe and ready for
review. In the interest of avoiding delay, and because the
Court conclusively finds the decisional process would not be
significantly aided by oral argument, the pending motions
will be decided on the record and without oral argument.
Dist. Idaho. L. Rule 7.1(d). For the reasons that follow, the
Court will deny all three motions.
TO RECONSIDER ORDER ON MOTION TO COMPEL (DKT. 64)
requests the Court to reconsider its order denying
Vanzant's motion to compel the video footage of
Vanzant's slip and fall. (Dkt. 64.) The Court has the
“inherent procedural power to reconsider, rescind, or
modify an interlocutory order for cause seen by it to be
sufficient.” City of Los Angeles v. Santa Monica
Baykeeper, 254 F.3d 882, 885 (9th Cir.2001) (internal
quotation marks and emphasis omitted). Although courts have
authority to reconsider prior orders, they “should be
loath to do so in the absence of extraordinary circumstances
such as where the initial decision was ‘clearly
erroneous and would work a manifest injustice.”
Christianson v. Colt Indus. Operating Corp., 486
U.S. 800, 817 (1988) (quoting Arizona v. California,
460 U.S. 605, 618 n. 8 (1983)).
Court has “distilled various grounds for
reconsideration of prior rulings into three major grounds for
justifying reconsideration: (1) an intervening change in
controlling law; (2) the availability of new evidence or an
expanded factual record; and (3) the need to correct a clear
error or to prevent manifest injustice.” Gray v.
Carlin, 2015 WL 75263, at *2 (D. Idaho Jan. 6, 2015)
(quoting Louen v. Twedt, 2007 WL 915226 (E.D.Cal.
March 26, 2007)). Vanzant challenges the Court's
ruling-that the IDOC Defendants were under no duty to
preserve the video footage-on grounds two and three.
offers new evidence, a grievance, in support of his
contention that he had requested video footage of his slip
and fall before the video was overwritten in the regular
course. This new evidence, Vanzant argues, demonstrates that
the IDOC Defendants had a duty to preserve the video footage
of his slip and fall. The Court has reviewed the grievance,
and finds it does not support grounds for reconsideration.
The grievance in question was filed by Vanzant on January 21,
2016-possibly within the time period before the video footage
of the slip and fall was overwritten. However, the grievance
requests only that Vanzant's cell unit be made handicap
accessible or that IDOC provide ADA compliant housing for
Vanzant. The grievance does not reference his slip and fall
nor request IDOC to preserve the video.
Vanzant contends the Court erred by not finding that his slip
and fall was an “extraordinary circumstance, ”
which would have otherwise prompted the Idaho Department of
Correction to preserve the video footage before it was
overwritten. Vanzant misses an important aspect of the
Court's order-that the Court cannot compel the IDOC
Defendants to produce something that is not in their
possession, custody, or control. Irrespective of whether the
IDOC Defendants had a duty to preserve the video footage of
Vanzant's slip and fall, the IDOC Defendants have made it
clear that the video footage, if it ever existed, is no
longer in their possession, custody, or control. As such, the
Court will deny Vanzant's motion for reconsideration.
TO APPOINT COUNSEL (DKT. 67)
requests that the Court appoint him counsel for the following
reasons: (1) he cannot afford to hire counsel; (2) the issues
in the case are complex and Vanzant has a limited
understanding of the law; (3) Vanzant's “jailhouse
lawyer” is no longer assisting him with his case; and
(4) having to participate in a deposition pro se would be
prejudicial to Vanzant. For the following reasons, the Court
will deny Vanzant's request.
criminal defendants, prisoners and indigents in civil actions
have no constitutional right to counsel unless their physical
liberty is at stake. Lassiter v. Dep't of Social
Services, 452 U.S. 18, 25 (1981). Whether a court
appoints counsel for indigent litigants is within the
court's discretion. Wilborn v. Escalderon, 789
F.2d 1328, 1331 (9th Cir. 1986).
civil cases, counsel should be appointed only in
“exceptional circumstances.” Id. To
determine whether exceptional circumstances exist, the court
should evaluate two factors: (1) the likelihood of success on
the merits of the case, and (2) the ability of the plaintiff
to articulate his claims pro se in light of the complexity of
legal issues involved. Terrell v. Brewer, 935 F.2d
1015, 1017 (9th Cir. 1991). Neither factor is dispositive,
and both must be evaluated together. Id.
Amended Complaint, liberally construed, appears to state a
claim upon which relief could be granted if the allegations
are proven at trial. However, without more than the bare
allegations of the Amended Complaint, the Court does not have
a sufficient basis upon which to assess the merits, if any,
at this point in the proceeding. The Court also finds that
Vanzant has articulated his claims sufficiently, and that the
legal issues in this matter are not complex. Moreover,
Vanzant's incarceration and limited skill and knowledge
of legal matters are not factors constituting exceptional
circumstances to warrant the appointment of counsel. Based on
the foregoing, the Court will deny Vanzant's request for
appointment of counsel. If it appears appropriate at a later
date in this litigation, the Court will reconsider appointing
FOR LEAVE OF THE COURT TO “STAY” DEFENDANTS'
SECOND AMENDED NOTICE OF ...