(PC) Dustin v. Kern Valley State Prison Personnel ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DALE OWEN DUSTIN, No. 1:19-cv-00989-LJO-SAB (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO VACATE JUDGMENT PURSUANT TO 13 v. FEDERAL RULE OF CIVIL PROCEDURE 60(b)(6) 14 KERN VALLEY STATE PRISON PERSONNEL, (Doc. No. 23) 15 Defendant. 16 17 Plaintiff Dale Owen Dustin is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. 19 On November 6, 2019, the assigned magistrate judge issued findings and 20 recommendations recommending that plaintiff’s application to proceed in forma pauperis be 21 denied pursuant to 28 U.S.C. § 1915(g) and that plaintiff be required to pay the $400.00 filing fee 22 in full in order to proceed with this civil action. (Doc. No. 16.) The findings and 23 recommendations were served on plaintiff and contained notice that any objections thereto were 24 to be filed within thirty (30) days after service of the findings and recommendations. (Id.) 25 Plaintiff timely filed objections on November 25, 2019. (Doc. No. 17.) 26 On December 1, 2019, the previously assigned district judge issued an order adopting the 27 November 6, 2019 findings and recommendations in full, denying plaintiff’s application to 28 proceed in forma pauperis, and ordering plaintiff to pay the $400.00 filing fee in full within 1 twenty-one (21) days from the date of service of the order. (Doc. No. 18.) The court’s December 2 1, 2019 order also warned plaintiff that, if he failed to pay the filing fee within the specified time, 3 this action would be dismissed. (Id. at 3.) 4 However, on December 27, 2019, rather than pay the $400.00 filing fee in full, plaintiff 5 filed “objections” to the December 1, 2019 order. (Doc. No. 19.) Additionally, on December 30, 6 2019, plaintiff filed an “addendum to opposition” to the court’s December 1, 2019 order. (Doc. 7 No. 20.) 8 On January 4, 2020, the court construed plaintiff’s “objections” and “addendum to 9 opposition” as a motion for reconsideration, denied that motion for reconsideration, and 10 dismissed this action, without prejudice, due to plaintiff’s failure to comply with the court’s 11 December 1, 2019 order and plaintiff’s failure to pay the $400.00 filing fee in full. (Doc. No. 21.) 12 Accordingly, judgment was entered against plaintiff on January 6, 2020. (Doc. No. 22.) 13 On February 10, 2020, plaintiff filed a motion to vacate the judgment pursuant to Federal 14 Rule of Civil Procedure 60(b)(6). (Doc. No. 23.) Rule 60(b)(6) permits the court to relieve a 15 party from an order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as 16 an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary 17 circumstances” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotation 18 marks and citation omitted). “A party moving for relief under Rule 60(b)(6) must demonstrate 19 both injury and circumstances beyond [their] control[.]” Id. (internal quotation marks and citation 20 omitted). Additionally, Local Rule 230(j) requires that, when a party makes a motion for 21 reconsideration, the party must show “what new or different facts or circumstances are claimed to 22 exist or were not shown upon such prior motion, or what other grounds exist for the motion” and 23 “why the facts and circumstances were not shown at the time of the prior motion.” 24 “A motion for reconsideration should not be granted, absent highly unusual 25 circumstances, unless the district court is presented with newly discovered evidence, committed 26 clear error, or if there is an intervening change in the controlling law.” Marlyn Nutraceuticals, 27 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks 28 and citation omitted). Therefore, “[a] party seeking reconsideration must show more than a 1 disagreement with the [c]ourt’s decision, and recapitulation of the cases and arguments 2 considered by the court before rendering its original decision fails to carry the moving party’s 3 burden.” United States v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001) 4 (internal quotation marks and citation omitted). 5 In this case, plaintiff contends that the judgment in this case should be vacated and the 6 January 6, 2020 order dismissing this action, without prejudice, should be reconsidered for two 7 reasons. First, plaintiff argues that the previously assigned district judge, Lawrence J. O’Neill, is 8 biased against him and should have recused himself from this action. Requests to disqualify or 9 recuse a district judge are governed by two statutes, 28 U.S.C. §§ 144 and 455. Section 144 10 requires disqualification or recusal of a district judge “[w]henever a party to any proceeding in a 11 district court makes and files a timely and sufficient affidavit that the judge before whom the 12 matter is pending has a personal bias or prejudice against him or in favor of any adverse party[.]” 13 Similarly, 28 U.S.C. § 455(a) and (b)(1) require a district judge to disqualify or recuse himself “in 14 any proceeding in which his impartiality might reasonably be questioned[,]” including “[w]here 15 he has a personal bias or prejudice concerning a party[.]” 16 Here, plaintiff states that Judge O’Neill should have been disqualified or recused from this 17 action based upon his prejudicial statements and attitude towards plaintiff as exhibited in prior 18 rulings in this case. However, under §§ 144 and 455(a) and (b)(1), “judicial rulings alone almost 19 never constitute a valid basis for a bias or partiality motion[]” because judicial rulings do not rely 20 on an extrajudicial source and “can only in the rarest circumstances evidence the degree of 21 favoritism or antagonism required … when no extrajudicial source is involved.” Liteky v. United 22 States, 510 U.S. 540, 555 (1994). Further, “opinions formed by the judge on the basis of facts 23 introduced or events occurring in the course of the current proceedings, or of prior proceedings, 24 do not constitute a basis for a bias or partiality motion unless they display a deep-seated 25 favoritism or antagonism that would make fair judgment impossible.” Id. Here, plaintiff has not 26 demonstrated that Judge O’Neill harbored any “deep-seated favoritism or antagonism that would 27 make fair judgment impossible.” Id. Because plaintiff has failed to establish that “a reasonable 28 person with knowledge of all the facts would conclude that the judge’s impartiality might 1 | reasonably be questioned|[,]” plaintiff’s request to disqualify or recuse Judge O’Neill and to 2 || reconsider and set aside the orders that Judge O’Neill made in this case must be denied. United 3 | States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) Ginternal quotation marks and citation 4 | omitted). 5 Second, plaintiff argues that that the judgment entered in this action should be vacated and 6 | the January 6, 2020 order dismissing this action without prejudice should be reconsidered because 7 | he is indigent and was in imminent danger of serious physical injury at the time he filed this 8 | action. However, plaintiff has not presented the court with any newly discovered evidence, 9 | demonstrated that the court committed clear error, or established that there has been an 10 || intervening change in the controlling law. Marlyn, 571 F.3d at 880. Instead, plaintiff's motion 11 | merely reiterates the same arguments previously presented to, and considered by, the court. 12 | Plaintiffs disagreement with the court’s decision is not grounds for reconsideration. Therefore, 13 | plaintiff's Rule 60(b)(6) motion to vacate the judgment must be denied. 14 CONCLUSION 15 Based on the foregoing, plaintiff's motion to vacate the judgment pursuant to Federal Rule 16 | of Civil Procedure 60(b)(6), (Doc. No. 23), is DENIED. 17 | IT IS SO ORDERED. me □ Dated: _ April 1, 2020 Yi A Dra 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28