Vieira v. Brown, et al.

Filing 20

ORDER Denying Plaintiff's Motion For Reconsideration (ECF No. 19 ), signed by Chief Judge Anthony W. Ishii on 10/26/2012. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD J. VIEIRA,

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Plaintiff,
ORDER DENYING PLAINTIFF’S
MOTION FOR RECONSIDERATION

v.

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CASE No. 1:12-cv-0044-AWI-MJS (PC)

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ARNOLD SCHWARZENEGGER, et al.,

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Defendants.

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________________________________/

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I.

(ECF No. 19)

PROCEDURAL HISTORY
Richard J. Vieira, (“Plaintiff”), a state death row prisoner proceeding pro se, filed

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this action on January 9, 2012 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The matter

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was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 636(b)(1)(B)

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and Local Rule 302 of the United States District Court for the Eastern District of

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California.
On September 17, 2012, the Court adopted Findings and Recommendations

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filed May 22, 2012, dismissed the action without prejudice, denied Plaintiff’s Motion for

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Consideration of Recusal (ECF No. 16), directed the Clerk to terminate all pending

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motions and close the file (ECF No. 17), and entered Judgment thereon. (ECF No. 18.)
On September 28, 2012, Plaintiff filed a Motion for Reconsideration (ECF No.

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19) asserting that Chief Judge Anthony Ishii is disqualified and the Judgment is

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erroneous and seeking rehearing, reversal of judgment, and thereupon transfer of all

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Plaintiff’s cases to the Northern District of California. This Motion is now before the

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Court.

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II.

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ANALYSIS
Rule 60(b)(6) allows the Court to relieve a party from a final judgment, order, or
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proceeding for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as

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an equitable remedy to prevent manifest injustice and is to be utilized only where

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extraordinary circumstances . . . ” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir.

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2008). The moving party “must demonstrate both injury and circumstances beyond his

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control . . . .” Id. In seeking reconsideration of an order, Local Rule 230(j) requires a

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party to identify the motion or order in issue and when it was made, and show “what

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new or different facts or circumstances are claimed to exist which did not exist or were

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not shown upon such prior motion, or what other grounds exist for the motion.”

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“A motion for reconsideration should not be granted, absent highly unusual

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circumstances, unless the . . . court is presented with newly discovered evidence,

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committed clear error, or if there is an intervening change in the controlling law,” Marlyn

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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009),

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and “[a] party seeking reconsideration must show more than a disagreement with the

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[c]ourt’s decision, and recapitulation . . . ” of that which was already considered by the

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court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111,

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1131 (E.D. Cal. 2001).

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Motions to reconsider are committed to the discretion of the trial court. Combs v.

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Nick Garin Trucking, 825 F.2d 437, 441 (D.C. Cir.1987); Rodgers v. Watt, 722 F.2d

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456, 460 (9th Cir. 1983). To succeed, a party must set forth facts or law of a strongly

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convincing nature to induce the court to reverse its prior decision. See e.g.,

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Kern–Tulare Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal.1986),

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aff'd in part and rev'd in part, 828 F.2d 514 (9th Cir. 1987).

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A.

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Plaintiff questions the impartiality of the undersigned and provides an affidavit

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Disqualification

meant to show personal bias or prejudice against him.1

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Plaintiff cites to 28 U.S.C. § 455(a) (any judge of the United States “shall disqualify him self in
any proceeding in which his im partiality m ight reasonably be questioned.”), and 28 U.S.C. § 144
(“ [w]henever a party to any proceeding in a district court m akes and files a tim ely and sufficient affidavit
that the judge before whom the m atter is pending has a personal bias or prejudice either against him or in

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A judge has an affirmative duty to recuse himself “in any proceeding in which

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his impartiality might reasonably be questioned.” 28 U.S.C. § 455; Liteky v. United

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States, 510 U.S. 540, 552 (1994). The substantive standard for recusal is “whether a

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reasonable person with knowledge of all the facts would conclude that the judge's

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impartiality might reasonably be questioned.” United States v. Hernandez, 109 F.3d

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1450, 1453 (9th Cir. 1997). The alleged bias must stem from an “extrajudicial source.”

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Liteky, 510 U.S. at 544-56. Judicial bias or prejudice formed during current or prior

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proceedings is sufficient for recusal only when the judge's actions “display a

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deep-seated favoritism or antagonism that would make fair judgment impossible.”

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Liteky, 510 U.S. at 555; Pesnell v. Arsenault, 543 F.3d 1038, 1044 (9th Cir. 2008).
Plaintiff reiterates previously denied recusal claims that the undersigned has

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ignored and/or not corrected and/or is complicit in federal rights deprivations by

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California courts. (Mot. for Recons. at 1-2.) He additionally asserts a disqualifying

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personal interest or bias (Id. at 4), apparently based upon rulings by the undersigned in

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his pending habeas matter, Richard John Vieira v. S.W. Ornoski, et al., E.D. Cal. Case

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No. 1:05-cv-01492-AWI, and a previously dismissed prisoner complaint, Theodore

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Shove v. United States District Court Judges, et al., D.C.D. Case No. 1;09-cv-02316-

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UNA, alleging civil and criminal violations by federal judges including the undersigned.2

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(Id. at 1, Aff. in Supp. at ¶ 3.)
Plaintiff’s arguments arising from the undersigned’s judicial conduct continue to

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be insufficient for disqualification in the absence of facts of deep-seated favoritism or

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antagonism. He offers no facts suggestive of favoritism or antagonism. His reiterated

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recusal claims fail for the reasons previously noted by the Court. (ECF No. 17 at 2:17-

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3:21.)

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His mere citation to Shove which named the undersigned as a defendant in

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favor of any adverse party, such judge shall proceed no further therein, but another judge shall be
assigned to hear such proceeding.“)
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Theodore Shove v. United States District Court Judges, et al., D.C.D. Case No. 1;09-cv-02316UNA, dism issed without prejudice on Heck grounds on January 25, 2010, affirm ed February 2, 2011.

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prisoner litigation dismissed without prejudice well before filing of the instant action is

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not alone sufficient for disqualification under the above standards.
His affidavit in support of disqualification is entirely conclusory, based upon

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conjecture and surmise.

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B.

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Plaintiff asserts that Younger abstention is no longer a bar to consideration of his

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federal claims.
Plaintiff correctly notes, and the Court takes notice that on July 18, 2012 his

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Younger Abstention

state petition for writ of habeas corpus, Vieira (Richard) on Habeas Corpus, Case No.

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S193257, was stricken by the California Supreme Court as filed in error. This state

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court action obviates the Younger abstention bar included in the Court’s September 17,

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2012 Judgment dismissing this action.

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However, this error is harmless. (Fed. R. Civ. P. 61.) Pursuant to the Court’s

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Judgment and for the reasons stated therein Plaintiff’s claims remain barred under

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Heck and fail to state any cognizable civil rights claim under 42 U.S.C. §§ 1983 and

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1985.

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III.

CONCLUSION AND ORDER
Plaintiff has not met his burden as party moving for reconsideration. Marlyn

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Nutraceuticals, Inc., 571 F.3d at 880. He has not shown clear error or other meritorious

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grounds for relief from Judgment entered in this action.

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Accordingly, for the foregoing reasons, it is HEREBY ORDERED that Plaintiff’s

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Dated:
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October 26, 2012
CHIEF UNITED STATES DISTRICT JUDGE

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