McCoy v. Kelso, et al.

Filing 292

ORDER DENYING 291 Plaintiff's Motion for Reconsideration signed by District Judge Anthony W. Ishii on 8/2/2021. (Jessen, A)

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Case 1:12-cv-00983-AWI-SAB Document 292 Filed 08/02/21 Page 1 of 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 JOSEPH RAYMOND MCCOY, 8 9 10 11 Plaintiff, v. CASE NO. 12-cv-00983-AWI-SAB (PC) ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION STRONACH, et al., (Doc. No. 291) Defendants. 12 13 14 Plaintiff Joseph Raymond McCoy proceeds pro se and in forma pauperis with this civil 15 rights action under 42 U.S.C. § 1983. 16 On July 12, 2021, the assigned magistrate judge denied Plaintiff’s seventh motion for 17 appointment of counsel and granted Plaintiff thirty days to file objections to the pending findings 18 and recommendations. Doc. No. 290. Plaintiff now objects to the July 12, 2021 order. Doc. No. 19 291. The Court construes Plaintiff’s objections as a motion for reconsideration. 20 Federal Rule of Civil Procedure 60(b) allows the Court to relieve a party from an order for 21 (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence that, with 22 reasonable diligence, could not have been discovered in time to move for a new trial, (3) fraud, 23 misrepresentation, or misconduct by an opposing party, (4) a void judgment, (5) a satisfied, 24 released, or discharged judgment, or (6) any other reason that justifies relief. Fed. R. Civ. P. 25 60(b). The catchall provision, Rule 60(b)(6), “is to be ‘used sparingly as an equitable remedy to 26 prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented 27 a party from taking timely action to prevent or correct an erroneous judgment.’” Harvest v. 28 Castro, 531 F.3d 737, 749 (9th Cir. 2008) (quoted source omitted). The moving party under Rule Case 1:12-cv-00983-AWI-SAB Document 292 Filed 08/02/21 Page 2 of 2 1 60(b) “must demonstrate both injury and circumstances beyond his control that prevented him 2 from proceeding with the action in a proper fashion.” Id. (quotation marks and quoted source 3 omitted). Moreover, in seeking reconsideration in this Court, a party must show “what new or 4 different facts or circumstances are claimed to exist which did not exist or were not shown upon 5 such prior motion, or what other grounds exist for the motion.” Eastern District of California 6 Local Rule 230(k). 7 Plaintiff contends that the magistrate judge “blatantly denied” him protection of the laws. 8 Doc. No. 291 at 3. Plaintiff’s disagreement with the magistrate judge’s conclusions that he has 9 not shown he is likely to succeed on the merits of this case and that he can adequately articulate 10 his claims in order to file objections to the findings and recommendations does not provide a 11 basis for reconsideration. See Ricks v. Austria, No. 1:15-cv-01147-BAM (PC), 2016 WL 12 1734326, at *2 (E.D. Cal. May 2, 2016) (explaining that counsel need not be appointed if the 13 plaintiff can articulate his claims, even if the pro se litigant might be better served with the 14 assistance of counsel). Thus, Plaintiff's motion for reconsideration will be denied. 15 16 ORDER 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s motion for reconsideration (Doc. No. 291) is DENIED; and 19 2. This case is referred back to the assigned magistrate judge for further proceedings. 20 21 IT IS SO ORDERED. 22 Dated: August 2, 2021 SENIOR DISTRICT JUDGE 23 24 25 26 27 28 2

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