Hubbard v. Corcoran State Prison et al

Filing 18

ORDER DENYING 17 Motion for Reconsideration signed by District Judge Anthony W. Ishii on 8/11/2015. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ZANE HUBBARD ,

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Plaintiff,

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CASE NO. 1:13-cv-01511-AWI-MJS (PC)
ORDER
DENYING
RECONSIDERATION

MOTION

FOR

v.
(ECF No. 17)
CORCORAN STATE PRISON, et al.,

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Defendants.

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I.

PROCEDURAL HISTORY

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action, now closed, proceeded

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against Defendants Lindsey, Nickell, Stanley, and Doe on Plaintiff’s Eighth Amendment

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conditions of confinement claim.

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On March 23, 2014, the Magistrate Judge assigned to the case issued findings

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and a recommendation to dismiss the action with prejudice for failure to state a claim.

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(ECF No. 14.) Plaintiff filed no objections. On April 24, 2015, the undersigned adopted

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the findings and recommendation (ECF No. 15), judgment was entered thereon (ECF

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No. 16), and the action was closed.

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Before the Court are Plaintiff’s May 18, 2015 objections to the findings and

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recommendation. (ECF No. 17.) The objections are untimely. The Court construes them

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as a motion for reconsideration. (ECF No. 17.)

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II.

LEGAL STANDARD

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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from

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an order for any reason that justifies relief. Rule 60(b)(6) “is to be used sparingly as an

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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. 2008)

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(internal quotations marks and citation omitted).

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

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circumstances, unless the district 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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“A motion for reconsideration may not be used to raise arguments or present evidence

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for the first time when they could reasonably have been raised in earlier litigation.” Id.

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Moreover, “recapitulation of the cases and arguments considered by the court before

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rendering its original decision fails to carry the moving party's burden.” U.S. v. Westlands

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Water Dist., 134 F. Supp. 2d 1111, 1131 (9th Cir. 2001) (quoting Bermingham v. Sony

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Corp. of Am., Inc., 820 F. Supp. 834, 856-57 (D.N.J. 1992)). Similarly, Local Rule 230(j)

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requires that a party seeking reconsideration show that “new or different facts or

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circumstances are claimed to exist which did not exist or were not shown upon such

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prior motion, or what other grounds exist for the motion . . . .”

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III.

DISCUSSION

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A.

Appointment of Counsel

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Plaintiff first objects on the ground that the Magistrate Judge failed to appoint him

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counsel. However, Plaintiff did not previously request counsel. Moreover, Plaintiff has no

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constitutional right to appointed counsel in this action. Plaintiff also did not, and indeed

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does not now, present exceptional circumstances that would prompt the Court to seek

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volunteer counsel on his behalf. See Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir.

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1997).

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B.

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Plaintiff next objects vaguely that the Magistrate Judge’s “mindframe” deprived

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Bias on the Part of the Magistrate Judge

him of a hearing on his claims and subjected him to cruel and unusual punishment.

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“Whenever a party to any proceeding in a district court makes and files a timely

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and sufficient affidavit that the judge before whom the matter is pending has a personal

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bias or prejudice either against him or in favor of any adverse party, such judge shall

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proceed no further therein, but another judge shall be assigned to hear such

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proceeding.” 28 U.S.C. § 144; see Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.

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2008). Section 144 expressly conditions relief upon the filing of a timely and legally

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sufficient affidavit. United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978).

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A judge must disqualify himself if “his impartiality might be reasonably

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questioned,” 28 U.S.C. § 455(a), or if “he has a personal bias or prejudice concerning a

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party, or personal knowledge of disputed evidentiary facts concerning the proceeding,”

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28 U.S.C. § 455(b)(1). However, the bias must arise “from an extrajudicial source” and

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cannot be based solely on information gained in the course of the proceedings. Pesnell,

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543 F.3d at 1043-44 (citing Liteky v. United States, 510 U.S. 540, 554-56 (1994)).

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“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality

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motion.” Id. at 1044 (quoting Liteky, 510 U.S. at 555). “In and of themselves . . . they

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cannot possibly show reliance upon an extrajudicial source; and can only in the rarest

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circumstances evidence the degree of favoritism or antagonism required . . . when no

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extrajudicial source is involved.” Focus Media, Inc. v. NBC, 378 F.3d 916, 930 (9th Cir.

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2004). Judicial bias or prejudice formed during current or prior proceedings is sufficient

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for recusal only when the judge's actions “display a deep-seated favoritism or

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antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555; Pesnell,

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543 F.3d at 1044. “‘[E]xpressions of impatience, dissatisfaction, annoyance, and even

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anger’ are not grounds for establishing bias or impartiality, nor are a judge's efforts at

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courtroom administration.” Pesnell, 543 F.3d at 1044 (quoting Liteky, 510 U.S. at 555–

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56).

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The objective test for determining whether recusal is required 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. Johnson, 610 F.3d 1138,

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1147 (quotation marks and citation omitted). “Adverse findings do not equate to bias.”

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Id. at 1148.

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Here, Plaintiff presents no basis for questioning the impartiality of the Magistrate

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Judge. To the extent Plaintiff’s complaint regarding the Magistrate Judge’s “mindframe”

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is predicated upon adverse findings and recommendations, it is insufficient to show

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partiality. Pesnell, 543 F.3d at 1044 (quoting Liteky, 510 U.S. at 555). Moreover, the

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undersigned conducted a de novo review of the findings and recommendation and

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concluded they were supported by the record and by proper analysis. Thus, the

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Magistrate Judge’s “mindframe” was not dispositive of Plaintiff’s claims.
Accordingly, Plaintiff’s objections to the Magistrate Judge’s “mindframe” do not

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provide a basis for reconsideration.

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C.

No Cognizable Claims

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Finally, Plaintiff appears to argue that his second amended complaint contained

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cognizable claims. However, Plaintiff essentially reiterates the points raised in his

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complaint. Restating arguments that previously have been considered and rejected by

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the Court, without more, does not provide a basis for reconsideration. Westlands Water

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Dist., 134 F. Supp. at 1131; Local Rule 230(j).

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IV.

CONCLUSION AND ORDER
Based on the foregoing, Plaintiff’s objections (ECF No. 17), which the Court

construes as a motion for reconsideration, are HEREBY DENIED.

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IT IS SO ORDERED.
Dated: August 11, 2015
SENIOR DISTRICT JUDGE

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