(PC) Dillingham v. Garcia ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JERRY DILLINGHAM, 1:19-cv-00461-AWI-GSA-PC 12 Plaintiff, ORDER DENYING MOTION TO APPEAR REMOTELY AND MOTION FOR 13 vs. RECONSIDERATION 14 J. GARCIA, et al., (ECF No. 107.) 15 Defendants. 16 17 I. BACKGROUND 18 Jerry Dillingham (“Plaintiff”) is a former state prisoner proceeding pro se and in forma 19 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 20 commencing this action on April 9, 2019. (ECF No. 1.) 21 This case was scheduled for an evidentiary hearing to take place on January 27, 2023 at 22 9:00 a.m. before Magistrate Judge Stanley A. Boone. However, on January 24, 2023 the hearing 23 was vacated as a result of Plaintiff’s failure to comply with the Court’s January 9, 2023 order 24 requiring Plaintiff to notify the Court by January 20, 2023 whether he intended to be present at 25 the January 27th hearing and additionally whether he intended to continue prosecuting this case. 26 (ECF No. 104.) On January 25, 2023, findings and recommendations were issued recommending 27 that this case be dismissed with prejudice for Plaintiff’s failure to comply with the Courts January 28 9, 2023 order. (ECF No.) On February 3, 2023 Plaintiff filed objections to the findings and 1 recommendations requesting the Court to reopen this case and put the Albino evidentiary hearing 2 back on calendar. (ECF No. 106.) This motion awaits a ruling from Judge Ishii and will not be 3 addressed here. 4 Relevantly, on February 3, 2023 (ECF No. 107), Plaintiff filed another motion requesting 5 to appear remotely and again for reconsideration of the court’s order denying him appointment 6 of counsel (assuming here that Plaintiff is referring to the Court orders of January 9, 2023 (ECF 7 No. 101), and the Courts subsequent order of January 23, 2023, which denied Plaintiffs motion 8 for reconsideration of the January 9th denial of appointment of counsel (ECF No. 103). 9 II. MOTION TO APPEAR REMOTELY 10 Plaintiff seeks to appear by remote means at the next evidentiary hearing and at future 11 court hearings. However, currently there are no court hearings scheduled, and more significantly 12 there is a Finding and Recommendation pending before Judge Ishii to dismiss this case in its 13 entirety. Thus, this request is premature and shall be denied without prejudice to refiling it in the 14 event the Finding and Recommendation filed on January 25 are not adopted. (ECF No. 105). 15 It should be noted though that in case 1:18-cv-00579-DAD-EPG, Dillingham v. Garcia, 16 the Court held a status conference remotely on May 2, 2022, at which Plaintiff failed to appear. 17 (ECF No. 189.) On May 2, 2022, the court as a result of Plaintiff’s non appearance issued an 18 order to show cause requiring Plaintiff to notify the court whether he intended to proceed to trial 19 without counsel, or whether he intended to no longer prosecute this case. (ECF No. 189.) In 20 addition, the court noted that it had previously denied Plaintiff’s request for counsel on 3 separate 21 occasions. Ultimately after some further proceedings, on May 16, 2022 the case was dismissed 22 by Judge Drozd due to Plaintiff’s failure to obey a court order and failure to prosecute (ECF No. 23 199). 24 III. MOTION FOR RECONSIDERATION 25 Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake, 26 inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable 27 diligence, could not have been discovered in time to move for a new trial under Rule 59(b); (3) 28 fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an 1 opposing party; (4) the judgment is void; or (6) any other reason that justifies relief.” Fed. R. 2 Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to prevent manifest 3 injustice and is to be utilized only where extraordinary circumstances . . .” exist. Harvest v. 4 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). The 5 moving party “must demonstrate both injury and circumstances beyond his control . . . .” Id. 6 (internal quotation marks and citation omitted). In seeking reconsideration of an order, Local 7 Rule 230(k) requires Plaintiff to show “what new or different facts or circumstances are claimed 8 to exist which did not exist or were not shown upon such prior motion, or what other grounds 9 exist for the motion.” 10 “A motion for reconsideration should not be granted, absent highly unusual 11 circumstances, unless the district court is presented with newly discovered evidence, committed 12 clear error, or if there is an intervening change in the controlling law,” Marlyn Nutraceuticals, 13 Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotation marks 14 and citations omitted, and “[a] party seeking reconsideration must show more than a 15 disagreement with the Court’s decision, and recapitulation . . . ” of that which was already 16 considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134 F.Supp.2d 17 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a strongly 18 convincing nature to induce the court to reverse its prior decision. See Kern-Tulare Water Dist. 19 v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in 20 part on other grounds, 828 F.2d 514 (9th Cir. 1987). 21 Discussion 22 On February 3, 2023, Plaintiff filed a motion for reconsideration of the court’s January 9, 23 2023 order denying him appointment of counsel. (ECF No. 102.) This is Plaintiff’s second 24 motion for reconsideration of the January 9th order and therefore the court construes it as a 25 motion for reconsideration of the January 23, 2023 order denying Plaintiff’s January 19, 2023 26 motion for reconsideration. (ECF No. 103.) 27 Plaintiff argues that he needs assistance with this litigation. He asserts that he is illiterate 28 and cognitively and physically disabled. He credits an unpaid jailhouse lawyer for assisting him 1 to this stage of the litigation by explaining court documents to him and preparing and filing 2 documents on Plaintiff’s behalf. Plaintiff asserts now that he is no longer in prison he has no one 3 to help him.1 4 The court has already denied Plaintiff’s requests for counsel twice in this case. (ECF 5 Nos. 88, 101.) Plaintiff has argued that he cannot read or write and does not understand legal 6 issues. Yet, since 1993, Plaintiff has filed 12 civil rights cases in Kentucky and California, and 7 litigated the cases pro se. (Pacer Search.) Plaintiff has not described extraordinary or highly 8 unusual circumstances warranting the appointment of counsel in this case18cv579. 9 Finally, the court’s order of May 16, 2022, in local case 18cv579 (ECF Doc No. 199) 10 clearly demonstrates that granting Plaintiff’s motion for reconsideration in this case would most 11 likely end up of having the same end result as the one in case 18cv579. 12 Therefore, because Plaintiff has not set forth facts or law of a strongly convincing nature 13 to induce the court to reverse its prior decision, Plaintiff’s motion for reconsideration shall be 14 denied. 15 IV. CONCLUSION 16 Based on the foregoing, IT IS HEREBY ORDERED that: 17 1. Plaintiff’s motion to appear remotely at the next and future evidentiary hearing is 18 DENIED without prejudice; and 19 2. Plaintiff’s motion for reconsideration of the court’s order denying appointment of 20 counsel is DENIED. 21 IT IS SO ORDERED. 22 23 Dated: February 10, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 1 Plaintiff acknowledges that he still has occasional assistance from the person who 28 helped him prepare this motion. (ECF No. 107 at 2:27.)