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UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF CALIFORNIA 

EARNEST CASSELL WOOD, II, 

Plaintiff, 

v. 

TOM L. CAREY, et al., 

Defendants. 

No. 2:04-cv-1225 MCE AC P 

ORDER 

 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 

U.S.C. § 1983. Currently before the court are plaintiff’s motion to lift the stay of the court’s 

September 29, 2014 order (ECF No. 341), plaintiff’s letter requesting that he be permitted to “file 

an ‘emergency 60B motion’” or that he be given an extension of his time to file a notice of appeal 

(ECF No. 344), plaintiff’s motion for leave to file a motion pursuant to Federal Rule of Civil 

Procedure 60(b) and subpoena defendant Carey (ECF No. 345), and plaintiff’s motion to file a 

late notice of appeal (ECF No. 347). 

I. Motion to Lift Stay 

 Defendant Cervantes was previously directed to satisfy the 2009 judgment in this case and 

file a notice of compliance. ECF No. 323. Cervantes subsequently requested a settlement 

conference be scheduled and moved to stay the order directing him to satisfy the 2009 judgment 

until the conclusion of the settlement conference. ECF No. 334. The court granted the request 

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for a settlement conference and stayed the order requiring satisfaction of the 2009 judgment. 

ECF No. 335. A settlement conference was scheduled for January 7, 2016. ECF No. 338. 

Plaintiff now moves for an order lifting the stay and requiring defendant Cervantes to satisfy the 

2009 judgment. ECF No. 341. 

 In his motion, plaintiff requests the stay be lifted so that he can have the money sent to his 

parents. Id. Defendant opposes the motion, claiming that lifting the stay “would frustrate 

Defendant’s motivation to participate in settlement negotiations in this action,” but states that he 

does not oppose moving the conference to an earlier date. ECF No. 342. Plaintiff replies that 

keeping the stay in place “would frustrate plaintiff’s motivation to participate in settlement 

negotiations.” ECF No. 346. He also makes numerous allegations against various department of 

corrections staff and requests the court review his case for “extraordinary circumstances that 

warrant appointment of counsel.” Id. 

 Both parties claim that doing as the other party requests with respect to the stay will 

frustrate their motivation to participate in the settlement conference, without offering any support 

for their respective positions. While the court is sympathetic to plaintiff’s desire to have the 

judgment paid out immediately, in the interests of economy, it declines to lift the stay at this time. 

With respect to defendant’s offer to move the settlement conference to an earlier date, an earlier 

settlement conference date has become available on the court’s calendar and the January 7, 2016 

settlement conference date will be vacated. The settlement conference will be re-set to August 

20, 2015, at 9:00 a.m., at the Robert T. Matsui Federal Courthouse, 801 I Street, Courtroom 26, 

Sacramento, CA 95814. A separate order and writ of habeas corpus ad testificandum will issue 

concurrently to provide for plaintiff’s attendance at the settlement conference. 

 The Inmate Locator website operated by the California Department of Corrections and 

Rehabilitation (CDCR) indicates that plaintiff is currently incarcerated at California State Prison- 

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Centinela.1 The court will therefore direct the Clerk of the Court to update plaintiff’s address on 

the docket to reflect that he is currently incarcerated at California State Prison-Centinela. 

With respect to plaintiff’s request for appointment of counsel, the United States Supreme 

Court has ruled that district courts lack authority to require counsel to represent indigent prisoners 

in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain 

exceptional circumstances, the district court may request the voluntary assistance of counsel 

pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); 

Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 

The test for exceptional circumstances requires the court to evaluate the plaintiff’s 

likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in 

light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 

1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances 

common to most prisoners, such as lack of legal education and limited law library access, do not 

establish exceptional circumstances that would warrant a request for voluntary assistance of 

counsel. In the present case, the court does not find the required exceptional circumstances and 

will deny plaintiff’s request. 

Finally, if plaintiff seeks to bring new claims against other department of corrections 

employees, he will need to present his claims in a separate action. 

II. Motion for Leave to File a Rule 60(b) Motion 

 Plaintiff seeks leave to file an untimely Rule 60(b) motion related to the order granting 

summary-judgment in favor of defendant Carey due to plaintiff’s misunderstanding of the order. 

ECF Nos. 344, 345. Plaintiff claims that he did not know until June 8, 2015, that defendant 

Carey had been dismissed from this action. Id. 

 In pertinent part, Federal Rule of Civil Procedure 60(b) states that “[o]n motion and just 

terms, the court may relieve a party . . . from a final judgment, order, or proceeding.” “The 

 

1

 See Fed. R. Evid. 201 (court may take judicial notice of facts that are capable of accurate 

determination by sources whose accuracy cannot reasonably be questioned); see also City of 

Sausalito v. O’Neill, 386 F.3d 1186, 1224 n.2 (9th Cir. 2004) (“We may take judicial notice of a 

record of a state agency not subject to reasonable dispute.”). 

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addition of the qualifying word ‘final’ emphasizes the character of the judgments, orders or 

proceedings from which Rule 60(b) affords relief; and hence interlocutory judgments are not 

brought within the restrictions of the rule . . . .” Fed. R. Civ. P. 60(b) advisory committee’s note. 

When an action presents more than one claim for relief—whether as 

a claim, counterclaim, crossclaim, or third-party claim—or when 

multiple parties are involved, the court may direct entry of a final 

judgment as to one or more, but fewer than all, claims or parties 

only if the court expressly determines that there is no just reason for 

delay. Otherwise, any order or other decision, however designated, 

that adjudicates fewer than all the claims or the rights and liabilities 

of fewer than all the parties does not end the action as to any of the 

claims or parties and may be revised at any time before the entry of 

a judgment adjudicating all the claims and all the parties’ rights and 

liabilities. 

Fed. R. Civ. P. 54(b). “Without a Rule 54(b) certification, orders granting partial summary 

judgment are non-final.” Chacon v. Babcock, 640 F.2d 221, 222 (9th Cir. 1981). In partially 

granting the motion for summary judgment, the court did not direct entry of final judgment as to 

the party and claims dismissed. ECF No. 323. Because the order granting partial summary 

judgment is not a final order, Rule 60(b) is not applicable and plaintiff’s motion for leave to file a 

Rule 60(b) motion is denied. See Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 

F.3d 867, 880 (9th Cir. 2000) (finding that “a preliminary injunction is not a ‘final judgment, 

order, or proceeding’ that may be addressed by motion under Rule 60(b)” because it is an 

“interlocutory order”); St. Mary’s Health Ctr. v. Bowen, 821 F.2d 493, 498 (8th Cir. 1987) 

(refusing to grant Rule 60(b) relief because a partial summary judgment order is not a final 

judgment). 

 To the extent plaintiff seeks leave to file a motion for reconsideration of the district 

court’s order pursuant to Rule 54(b), his request will also be denied. Where reconsideration of a 

non-final order is sought, the court has “inherent jurisdiction to modify, alter or revoke it.” 

United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000). Generally stated, reconsideration is 

appropriate where there has been an intervening change in controlling law, new evidence has 

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become available, or it is necessary to correct clear error or prevent manifest injustice. See Sch. 

Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). 

In the absence of new evidence or a change in the law, a party may not use a motion for 

reconsideration to raise arguments or present new evidence for the first time when it could 

reasonably have been raised earlier in the litigation. Carroll v. Nakatani, 342 F.3d 934, 945 (9th 

Cir. 2003); see also Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). Motions to 

reconsider are also “not vehicles permitting the unsuccessful party to ‘rehash’ arguments 

previously presented.” United States v. Navarro, 972 F. Supp. 1296, 1299 (E.D. Cal. 1997), rev’d 

on other grounds, 160 F.3d 1254 (9th Cir. 1998). Ultimately, a party seeking reconsideration 

must show “more than a disagreement with the Court’s decision, and recapitulation of the cases 

and arguments considered by the court before rendering its original decision fails to carry the 

moving party’s burden.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 

(E.D. Cal. 2001) (citations and internal quotes omitted). 

Though plaintiff has not submitted a proposed motion for reconsideration, he states that if 

he had known that Carey had been dismissed “he would have appealed the Court’s decision citing 

the Ninth Circuit order showing that defendant Carey knew of the violations, failed to act to 

prevent them and committed perjury to conceal his knowledge.” ECF No. 345 at 1. This is 

essentially the same argument that plaintiff made in his objection to the findings and 

recommendation (ECF No. 318 at 1-2), which also belies his claim that he was unaware that 

defendant Carey had been dismissed. 

Because it appears that plaintiff seeks to re-assert arguments that he has already made and 

he has not filed a proposed motion for reconsideration that demonstrates otherwise, his motion for 

leave to file a motion for reconsideration will be denied. 

 Included with plaintiff’s motion for leave to file a Rule 60(b) motion is a request to 

subpoena defendant Carey as a witness for the settlement conference. ECF No. 345. Since 

witnesses do not participate in settlement conferences, plaintiff’s request will be denied. 

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III. Motion to File a Late Notice of Appeal 

 “The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the 

district courts of the United States . . . except where a direct review may be had in the Supreme 

Court. 28 U.S.C. § 1291. 

 Plaintiff seeks leave to file a late notice of appeal related to the order partially granting 

defendants’ motion for summary judgment (ECF No. 323). ECF Nos. 344, 347. As set forth in 

Section II above, the order partially granting defendants’ motion for summary judgment was not a 

final judgment. “Absent special circumstances not present here, [the Ninth Circuit] does not have 

jurisdiction to hear appeals from such orders.” Chacon, 640 F.2d at 222 (citing Strozier v. 

General Motors Corp., 584 F.2d 755 (5th Cir. 1978); Backus Plywood Corp. v. Commercial 

Decal, Inc., 317 F.2d 339, 341 (2d Cir. 1963)); see also 28 U.S.C. § 1292 (setting out when the 

court of appeals has jurisdiction over an interlocutory appeal). 

 Since the order dismissing defendant Carey is not a final, appealable order, plaintiff’s time 

to file a notice of appeal with respect to that order has not yet begun to run and any notice of 

appeal would be premature. Plaintiff’s motion to file a late notice of appeal is therefore denied. 

 Accordingly, IT IS HEREBY ORDERED that: 

 1. Plaintiff’s motion to lift the stay of the court’s September 29, 2014 order (ECF No. 

341) is denied. 

 2. The January 7, 2016 settlement conference is vacated. This case is set for a settlement 

conference before Magistrate Judge Allison Claire on August 20, 2015, at 9:00 a.m., at the Robert 

T. Matsui Federal Courthouse, 801 I Street, Courtroom 26, Sacramento, CA 95814. 

3. Each party must have a principle with full and unlimited authority to negotiate and 

enter into a binding settlement attend in person. 

4. Those in attendance must be prepared to discuss the claims, defenses and damages. 

The failure of any counsel, party, or authorized person subject to this order to appear in person 

may result in the imposition of sanctions. 

5. Defendant shall provide a confidential settlement statement to chambers, no later than 

August 13, 2015, via e-mail to acorders@caed.uscourts.gov. Plaintiff has already submitted his 

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confidential settlement statement (see ECF No. 340) and it is not necessary for him to send 

another copy. Such statements are neither to be filed with the Clerk nor served on the opposing 

party. However, each party shall notify the other party that the statement has been submitted to 

the judge’s chambers. 

6. The Clerk of the Court is directed to fax a courtesy copy of this order to the Litigation 

Coordinator at California State Prison-Centinela at (760) 337-7650. 

7. The Clerk of the Court is directed to update plaintiff’s address of record to reflect that 

he is currently housed at California State Prison, Centinela, Facility A, P.O. Box 901, Imperial, 

CA 92251. 

 8. Plaintiff’s request for appointment of counsel (ECF No. 346) is denied. 

 9. Plaintiff’s motions for leave to file a Rule 60(b) motion or other motion for 

reconsideration (ECF Nos. 344, 345) are denied. 

 10. Plaintiff’s request to subpoena defendant Carey as a witness for the settlement 

conference (ECF No. 345) is denied. 

 11. Plaintiff’s requests for leave to file a late notice of appeal (ECF Nos. 344, 347) are 

denied. 

DATED: July 31, 2015. 

___________/S/ Allison Claire__________ 

 ALLISON CLAIRE 

 UNITED STATES MAGISTRATE JUDGE 

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