(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 FOR RECONSIDERATION OF ORDER 13 vs. DENYING MOTION FOR APPOINTMENT OF COUNSEL 14 J. GARCIA, et al., ORDER DENYING MOTION FOR 15 Defendants. RECUSAL OF MAGISTRATE JUDGE AUSTIN 16 (ECF No. 102.) 17 18 19 I. BACKGROUND 20 Jerry Dillingham (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 21 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 22 commencing this action on April 9, 2019. (ECF No. 1.) 23 On January 19, 2023, Plaintiff filed a motion for reconsideration of the court’s order 24 denying him appointment of counsel. (ECF No. 102.) Plaintiff also brings a motion for recusal 25 of Magistrate Judge Gary S. Austin from this case.1 (Id.) 26 27 1 Plaintiff also filed a motion for recusal of District Judge Anthony W. Ishii from this case, 28 which shall not be addressed in this order. 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 quotation 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 Discussion 27 On January 19, 2023, Plaintiff filed a motion for reconsideration of the court’s order 28 denying him appointment of counsel. (ECF No. 102.) Plaintiff has not set forth facts or law of 1 a strongly convincing nature to induce the court to reverse its prior decision. Therefore, 2 Plaintiff’s motion for reconsideration shall be denied. 3 III. MOTION FOR RECUSAL OF MAGISTRATE JUDGE 4 Federal law provides that “[a]ny justice, judge, or magistrate judge of the United States 5 shall disqualify himself in any proceeding in which his impartiality might reasonably be 6 questioned.” 28 U.S.C. § 455(a). Section (b) of that statute sets forth a number of additional 7 grounds for disqualification, including where the judge “has a personal bias or prejudice 8 concerning a party,” “personal knowledge of disputed evidentiary facts concerning the 9 proceeding,” where “in private practice he served as lawyer in the matter in controversy,” or “has 10 been a material witness concerning it.” Id. § 455(b). 11 A motion under § 455 is addressed to, and must be decided by, the very judge whose 12 impartiality is being questioned.” Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). “Section 13 455 clearly contemplates that decisions with respect to disqualification should be made by the 14 judge sitting in the case, and not by another judge.” Id. (quoting United States v. Balistrieri, 779 15 F.2d 1191, 1202 (7th Cir. 1985)). “[S]ection 455 includes no provision for referral of the question 16 of recusal to another judge; if the judge sitting on the case is aware of grounds for recusal under 17 section 455, that judge has a duty to recuse himself or herself.” U.S. v. Sibla, 624 F.2d 864, 868 18 (9th Cir. 1980) (citing see, e.g., Nicodemus v. Chrysler Corp., 596 F.2d 152, 157 & n.10 (6th 19 Cir. 1979)). 20 Plaintiff argues that the undersigned magistrate judge should recuse himself from this 21 case if he continues to use cited law that discriminates against Plaintiff in denying his motion to 22 appoint counsel. 23 Plaintiff’s motion for recusal must be denied. The magistrate judge has the authority to 24 rule on pretrial matters pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff has not 25 supported his motion with any evidence that the undersigned has a personal bias against Plaintiff 26 from an extra-judicial source. A judge’s rulings while presiding over a case do not constitute 27 extra-judicial conduct. In re Focus Media, Inc., 378 F.3d at 930. Plaintiff’s disagreement with 28 the court’s ruling is not a legitimate ground for seeking disqualification. 1 IV. PLAINTIFF IS REQUIRED TO APPEAR AT THE EVIDENTIARY HEARING 2 This case is scheduled for an evidentiary hearing on January 27, 2023 at 9:00 a.m. before 3 Magistrate Judge Stanley A. Boone in Courtroom 9. Plaintiff is required to appear at the 4 evidentiary hearing in person. On January 9, 2023, the court issued an order requiring Plaintiff 5 to inform the court no later than January 20, 2023, at 5:00 p.m. whether he intends to be present 6 at the Evidentiary Hearing and whether he intends to continue prosecuting this case. (ECF No. 7 101.) Plaintiff is again admonished that his failure to comply with the court’s January 7, 2023 8 order, which includes a requirement that he personally appear at the evidentiary hearing set on 9 the 27th of this month, will likely result in a recommendation that this case be dismissed in its 10 entirety. 11 V. CONCLUSION 12 Based on the foregoing, IT IS HEREBY ORDERED that: 13 1. Plaintiff’s motion for reconsideration, filed on January 19, 2023, is DENIED; 14 2. Plaintiff’s motion for the recusal of Magistrate Judge Gary S. Austin, filed on 15 January 19, 2023, is DENIED; 16 3. Plaintiff is required to appear in person at the evidentiary hearing scheduled on 17 January 27, 2023 at 9:00 a.m. before Magistrate Judge Stanley A. Boone in 18 Courtroom 9; and 19 4. Plaintiff is again admonished that his failure to comply with the court’s orders, 20 including a failure to attend the evidentiary January 27 evidentiary hearing in 21 person, will likely result in a recommendation that this case be dismissed in its 22 entirety. 23 IT IS SO ORDERED. 24 25 Dated: January 20, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26 27 28