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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Lee Michael Beitman,

Plaintiff,

v. 

S. Herrick, et al.,

Defendants.

No. CV-17-08229-PCT-JAT

ORDER 

Pending before the Court is Plaintiff’s Motion for Reconsideration (Doc. 233) of 

this Court’s January 19, 2022 Order denying Plaintiff’s Motion for Appointment of 

Counsel (Doc. 223).

On January 13, 2022, Plaintiff filed a Motion for Appointment of Counsel. (Doc. 

221). On January 19, 2022, the Court denied that motion, finding no exceptional 

circumstances warranted appointment of counsel given Plaintiff’s ability to articulate his 

claims pro se and a low likelihood of success on the merits of the current case based on the 

previous jury verdict in a case that largely addressed the same issues. (Doc. 223 at 2). On 

January 28, 2022, Plaintiff filed the present Motion for Reconsideration of that Order.

(Doc. 232).

Pursuant to Local Rule 7.2(g)(1): 

The Court will ordinarily deny a motion for reconsideration of 

an Order absent a showing of manifest error or a showing of 

new facts or legal authority that could not have been brought 

to its attention earlier with reasonable diligence. Any such 

motion shall point out with specificity the matters that the 

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movant believes were overlooked or misapprehended by the 

Court, any new matters being brought to the Court’s attention 

for the first time and the reasons they were not presented 

earlier, and any specific modifications being sought in the 

Court’s order. No motion for reconsideration of an Order may 

repeat any oral or written argument made by the movant in 

support of or in opposition to the motion that resulted in the 

Order. Failure to comply with this subsection may be grounds 

for denial of the motion.

First, Plaintiff argues that he “lacks the skill set necessary to” prepare for the final 

pretrial conference and to represent himself effectively at trial. (Doc. 233 at 2). However, 

Local Rule 7.2(g)(1) requires that motions for reconsideration do not “repeat any oral or 

written argument made by the movant in support of or in opposition to the motion that 

resulted in the Order.” Plaintiff raised these concerns in his original motion and the Court 

addressed them in its prior Order. (See Doc. 223 at 2). Moreover, Plaintiff’s simultaneously 

filed Motion for Sanctions (Doc. 236) suggests that he can articulate his claims and his 

evidentiary objections without the assistance of counsel. Additionally, although Plaintiff 

seeks counsel to help him file his motions in limine, the deadline to file any such motions 

was on January 25, 2022.

Next, Plaintiff argues that the Court erred in finding the previous jury verdict 

indicative of his likelihood of success in this case because he contends that the unfavorable 

verdict resulted from both the Court’s “abuse of discretion and judicial error” and his 

previous counsel’s ineffective performance. (Id. at 2–3). Plaintiff proffers a variety of 

examples of the Court’s and his prior counsel’s failings that are unrelated to the present 

request for counsel. However, as discussed in the prior Order, the Court finds a low 

likelihood of success on the merits in this case because Defendant Herrick testified in the 

prior case regarding her treatment of Plaintiff’s facial injuries, which is central to the issues 

underpinning both cases. (Doc. 223 at 2). Plaintiff does not argue that Defendant Herrick’s 

testimony was not central to the issues in the previous case nor that the alleged errors of 

this Court or prior counsel resulted in the improper admission of that testimony. See 

Motorola, Inc. v. J.B. Rodgers Mechanical Contractors, 215 F.R.D. 581, 582 (D. Ariz. 

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2003) (“[R]econsideration [may not] be used to ask the Court to rethink what it has already 

thought.”) (citations omitted).

Plaintiff further contends that the Court’s prior Order both suggests that the Court 

harbors prejudice against him for appealing the unfavorable jury verdict and disincentives 

Defendants to offer him a favorable pretrial settlement. (Id. at 5–6). Plaintiff contends that 

the Court’s alleged prejudice constitutes an “exceptional circumstance” that requires the 

Court to appoint him counsel. (Id. at 7). However, as explained in the Court’s prior Order, 

a finding of exceptional circumstances only “requires an evaluation of both the likelihood 

of success on the merits [and] the ability of the petitioner to articulate his claims pro se in 

light of the complexity of the legal issues involved.” (Doc. 223 at 2) (citing Wilborn v. 

Escalderon, 789 F.2d 1328 (9th Cir. 1986) (quotations omitted)). The Court does not find 

that Plaintiff’s arguments of this Court’s alleged prejudice against him to affect the 

likelihood of success on the merits of his claims before a jury. Nor does the Court find the 

same to affect his ability to articulate his claims pro se. 1

Finally, Plaintiff argues that under Bounds v. Smith, his lack of access to a law 

library at his prison facility violates his constitutional right to access the courts. (Id. at 6)

(citing Bounds v. Smith, 430 U.S. 817 (1977)). In Bounds v. Smith, the Supreme Court held 

“the fundamental constitutional right of access to the courts requires prison authorities to 

assist inmates in the preparation and filing of meaningful legal papers by providing 

prisoners with adequate law libraries or adequate assistance from persons trained in the 

law.” Bounds, 430 U.S. at 828. However, in Lewis v. Casey, the Supreme Court limited its 

earlier decision in Bounds and reversed a Ninth Circuit decision upholding a District of 

Arizona determination that Arizona Department of Corrections violated prisoners’ right to 

access the courts by failing to update legal materials or provide access to the law library. 

518 U.S. 343, 346–347 (1996). The Lewis Court clarified that Bounds did not establish “the 

right to a law library or to legal assistance,” and instead reiterated the well-known right to

1 To the extent Plaintiff is asking this Court to appoint him counsel based on various alleged 

errors of the Court and his previous counsel in his prior case, those are issues squarely 

within the Ninth Circuit’s review on appeal and not for this Court to weigh in on.

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court access. Id. at 350. The Lewis Court went on:

In the cases to which Bounds traced its roots, we had protected 

that right by prohibiting state prison officials from actively 

interfering with inmates’ attempts to prepare legal documents 

or file them, and by requiring state courts to waive filing fees 

or transcript fees for indigent inmates. Bounds focused on the 

same entitlement of access to the courts. Although it affirmed 

a court order requiring North Carolina to make law library 

facilities available to inmates, it stressed that that was merely 

one constitutionally acceptable method to assure meaningful 

access to the courts, and that our decision here ... does not 

foreclose alternative means to achieve that goal. In other 

words, prison law libraries and legal assistance programs are 

not ends in themselves, but only the means for ensuring a 

reasonably adequate opportunity to present claimed violations 

of fundamental constitutional rights to the courts. 

Id. at 350–51 (citations omitted). Here, Plaintiff has not alleged that the prison officials are 

preventing him from his right to access the courts or from presenting his legal claims. 

Plaintiff’s ability to access the court is evidenced by the various articulate filings before 

the Court in this case. Thus, the Court does not find Plaintiff’s argument persuasive enough 

to reconsider its Order denying Plaintiff counsel on this basis.

Accordingly,

IT IS ORDERED that Plaintiff’s Motion for Reconsideration (Doc. 233) is denied.

Dated this 3rd day of February, 2022.

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