(PC) Washington v. Hicks ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TRACYE BENARD WASHINGTON, 1:19-cv-00156-NONE-GSA-PC 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION 13 vs. (ECF No. 56.) 14 HICKS, et al., 15 Defendants 16 17 I. BACKGROUND 18 Tracye Benard Washington (“Plaintiff”) is a state prisoner proceeding pro se with this 19 civil rights action pursuant to 42 U.S.C. § 1983. This case now proceeds with Plaintiff’s 20 Complaint filed on February 5, 2019, against defendants Sergeant David Hicks and Correctional 21 Officer Hipolito Rocha (“Defendants”) for use of excessive force in violation of the Eighth 22 Amendment. (ECF No. 1.)1 23 On May 27, 2021, the court issued an order denying Plaintiff’s request for recusal of the 24 undersigned Magistrate Judge. (ECF No. 54.) On June 1, 2021, Plaintiff filed objections which 25 the court construes as a motion for reconsideration of the order denying Plaintiff’s request for 26 recusal. (ECF No. 56.) 27 28 1 On June 22, 2020, the court issued an order dismissing all other claims and defendants from this action, based on Plaintiff’s failure to state a claim. (ECF No. 19.) 1 II. MOTION FOR RECONSIDERATION 2 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 3 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 4 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) 5 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 6 opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R. 7 Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 8 injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. 9 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The 10 moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id. 11 (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local 12 Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are claimed 13 to exist which did not exist or were not shown upon such prior motion, or what other grounds 14 exist for the motion.” 15 “A motion for reconsideration should not be granted, absent highly unusual 16 circumstances, unless the district court is presented with newly discovered evidence, committed 17 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 18 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks 19 and citations omitted, and “[a] party seeking reconsideration must show more than a 20 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 21 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 22 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly 23 convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. 24 v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in 25 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 26 III. DISCUSSION 27 Plaintiff requests reconsideration of the court’s order issued on May 27, 2021, in which 28 the court denied Plaintiff’s request for recusal of the undersigned. Plaintiff has not set forth facts 1 or law of a strongly convincing nature to induce the court to reverse its prior decision. Therefore, 2 Plaintiff’s motion for reconsideration shall be denied. 3 IV. CONCLUSION 4 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s motion for reconsideration, 5 filed on June 1, 2021, is DENIED. 6 IT IS SO ORDERED. 7 8 Dated: August 6, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28