United States District Court, M.D. Georgia, Columbus Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
se Plaintiff Robert Ralph DiPietro, a prisoner currently
confined at the Rutledge State Prison (“RSP”) in
Columbus, Georgia, has filed two motions for reconsideration
of the Court's April 29, 2019 Order denying
Plaintiff's request for appointed counsel and a temporary
restraining order (“TRO”) in this case (ECF Nos.
27, 28). For the following reasons, these motions are
Rule 7.6 provides that motions for reconsideration shall not
be filed as a matter of routine practice. M.D. Ga. R. 7.6.
Generally, such motions will only be granted if the movant
demonstrates that (1) there was an intervening development or
change in controlling law, (2) new evidence has been
discovered, or (3) the court made a clear error of law or
fact. Rhodes v. MacDonald, 670 F.Supp.2d 1363, 1378
(M.D. Ga. 2009).
Motion to Reconsider Denial of Appointed Counsel
first asks the Court to reconsider its decision to deny
appointed counsel in this case. Plaintiff primarily contends
that without counsel, he cannot provide the court with a
complete, accurate amended complaint because he has
“limited time and resources at this prison's law
library” and he is unsure how to join various parties
and claims. See, e.g., Mot. Recons. 3, ECF No. 27.
has not provided the Court with grounds to reconsider its
previous decision that no exceptional circumstances merit the
appointment of counsel at this time. Plaintiff's motion
largely rehashes the arguments he already made in his initial
motion for appointed counsel. A motion for reconsideration
should not be used to relitigate matters already decided or
present new arguments that could have been earlier raised.
Cf., e.g., Jones v. S. Pan Servs., 450 Fed.Appx.
860, 863 (11th Cir. 2012) (per curiam) (“A motion to
alter or amend a judgment cannot be used to relitigate old
matters, raise arguments, or present evidence that could have
been raised prior to the entry of judgment.”). Thus,
the Court declines to address any arguments Plaintiff
does not identify any changes in the law or new evidence that
justifies his motion for reconsideration, and the Court thus
presumes that Plaintiff believes the Court's prior order
was based on an erroneous finding of law or fact. Plaintiff
first attempts to supplement his request for appointed
counsel with specific instances where his limited access to
prison law library resources has “harmed” him.
See, e.g., Mot. Recons. 3-5, ECF No. 27. In each
example he cites, however, his argument boils down to the
assertion that “having an attorney would be helpful to
[Plaintiff].” Maldonado v. Unnamed Defendant,
648 Fed.Appx. 939, 956 (11th Cir. 2016) (per curiam). As the
Court has already observed, while it may be true that
Plaintiff could benefit from the assistance of counsel, the
same “is true of many pro se litigants and does not
constitute an exceptional circumstance” requiring the
appointment of counsel. Id.
also contends that the Court overlooked that Plaintiff is
“currently still severely depressed, with severe
anxiety” and therefore “not able to keep up with
the demands of this and the other law suit.” Mot.
Recons. 7, ECF No. 27. Plaintiff also states that he is
“about to have a nervous breakdown because of the
pressure of these two lawsuits.” Id. Again,
however, “[t]he key” in determining whether
appointed counsel is warranted “is whether the pro
se litigant needs help in presenting the essential
merits of his position to the court.” Nelson v.
McLaughlin, 608 Fed.Appx. 904, 905 (11th Cir. 2015) (per
curiam). Contrary to his assertions, Plaintiff has been able
to “keep up” with the filings in this case, and
he has also managed to file multiple motions for extension of
time, a motion for appointed counsel, a motion for
reconsideration, and a 33-page brief in his appeal in his
other case. See generally DiPietro v. Med. Staff at
Fulton Cnty., Appeal No. 18-13757 (11th Cir. Sept. 7,
2018). His filings in this case are articulate and adequately
convey the essential merits of his position to the Court.
Plaintiff has therefore failed to show that his anxiety and
depression warrant the appointment of counsel.
extent Plaintiff wishes to add various claims and parties to
his lawsuit and requests that the Court assist him with this
process, Mot. Recons. 4-5, ECF No. 27, this Court cannot
provide Plaintiff with legal advice specific to his case or
“serve as de facto counsel” for
Plaintiff. GJR Invs., Inc. v. Cnty. of Escambia, 132
F.3d 1359, 1369 (11th Cir. 1998), overruled on other
grounds by Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Plaintiff, like any other litigant, must comply with the
Federal Rules of Civil Procedure concerning joinder of
parties and claims. See Fed. R. Civ. P. 18,
Generally speaking, these rules provide that a plaintiff may
set forth only related claims in a single lawsuit. A
plaintiff may not join unrelated claims and various
defendants in his complaint unless the claims arise
“out of the same transaction, occurrence, or series of
transactions or occurrences and if any question of
law or fact common to all defendants will arise in the
action.” Fed.R.Civ.P. 20 (emphasis added). “[A]
claim arises out of the same transaction or occurrence if
there is a logical relationship between the claims.”
Constr. Aggregates, Ltd. v. Forest Commodities
Corp., 147 F.3d 1334, 1337 n.6 (11th Cir. 1998). Though
Plaintiff has stated that he does not presently know the
identity of some of the individuals he wishes to name in his
amended complaint, he may move to amend and seek to add those
individuals as parties if he learns their names during
discovery. See Fed. R. Civ. P. 15.
to the extent Plaintiff contends that the Court erred by
assigning this case to the Magistrate Judge, 28 U.S.C. §
636(b)(1) and Federal Rule of Civil Procedure 72 permit a
district judge to designate a case to a magistrate judge to
hear and determine all pretrial matters pending before the
Court, except for dispositive motions. The Magistrate Judge
will make a recommendation to the undersigned District Judge
concerning any dispositive motions, including motions to
dismiss for failure to state a claim, for summary judgment,
and for injunctive relief. Pursuant to 28 U.S.C. § 636(c)(1),
the parties may consent to have the Magistrate Judge conduct
all proceedings in this case, to include a jury or
non-jury trial, and to enter the final judgment in this case.
If Plaintiff wishes to consent to the Magistrate Judge
conducting all proceedings in this case, he should follow the
directions on the consent form to which he refers in his
motion for reconsideration.
Motion to Reconsider Denial of TRO
Plaintiff has also filed a motion for the Court to reconsider
his request for a TRO. In this motion, Plaintiff contends
that when his counselor reassured him that he would be
“safe” no one at RSP knew Plaintiff “had a
pending lawsuit against employees at RSP.” Mot. Recons.
1-2, ECF No. 28. Plaintiff states that since Defendants have
now been served, he has been the victim of retaliation.
Id. at 2. More specifically, Plaintiff alleges that
his cell was shaken down and his property taken “for no
reason”; he was not given an incentive meal; and he was
denied a transfer to a transitional center. Id. at
Plaintiff therefore again requests that the Court grant him a
TRO requiring Defendants to stop retaliating against him.
See Id. at 3-4.
has again failed to demonstrate that an adequate basis for
reconsideration exists. Even assuming the Court misunderstood
Plaintiff's counselor's statement that Plaintiff
would be “safe” at RSP, Plaintiff is not entitled
to the relief he seeks. The Court simply cannot issue an
order directing prison officials to stop retaliating against
him. See, e.g., Elend v. Basham, 471 F.3d 1199, 1209
(11th Cir. 2006) (“It is well-established in this
circuit that an injunction demanding that a party do nothing
more specific than ‘obey the law' is
impermissible.”). And to the extent Plaintiff contends
that prison officials at RSP are now retaliating against him
because he filed this lawsuit, he may move for leave to
supplement his complaint to include such claims. See
Fed. R. Civ. P. 15(d) (“On motion ...