Thomas v. Rene Wilkinson , et al

Filing 72

ORDER DENYING Motion for Reconsideration; ORDER DENYING Motion for Disqualification of Magistrate Judge Gary S. Austin 68 , signed by Magistrate Judge Gary S. Austin on 07/28/17. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSH THOMAS,

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Plaintiff,

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1:15-cv-00527-LJO-GSA-PC
ORDER DENYING MOTION FOR
RECONSIDERATION

vs.
WILKINSON, et al.,

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Defendants.

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ORDER DENYING MOTION FOR
DISQUALIFICATION OF
MAGISTRATE JUDGE GARY S.
AUSTIN
(ECF No. 68.)

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I.

Josh Thomas (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action

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BACKGROUND

pursuant to 42 U.S.C. § 1983.

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On July 24, 2017, Plaintiff filed objections to the court’s orders denying his motion to

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amend and striking his surreply. (ECF No. 68.) The court construes Plaintiff’s objections as a

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motion for reconsideration of the orders. Plaintiff also requests disqualification of Magistrate

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Judge Gary S. Austin from further participation in this case. (Id.)

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II.

MOTION FOR RECONSIDERATION

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Rule 60(b) allows the Court to relieve a party from an order for “(1) mistake,

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inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with
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reasonable diligence, could not have been discovered in time to move for a new trial under

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Rule 59(b); (3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or

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misconduct by an opposing party; (4) the judgment is void; or (6) any other reason that justifies

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relief.” Fed. R. Civ. P. 60(b). Rule 60(b)(6) “is to be used sparingly as an equitable remedy to

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prevent manifest injustice and is to be utilized only where extraordinary circumstances . . .”

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exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and

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citation omitted). The moving party “must demonstrate both injury and circumstances beyond

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his control . . .” Id. (internal quotation marks and citation omitted). In seeking reconsideration

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of an order, Local Rule 230(k) requires Plaintiff to show “what new or different facts or

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

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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 district court is presented with newly discovered evidence, committed

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

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

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marks and citations omitted, and “[a] party seeking reconsideration must show more than a

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disagreement with the Court’s decision, and recapitulation . . .” of that which was already

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considered by the Court in rendering its decision,” U.S. v. Westlands Water Dist., 134

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F.Supp.2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set forth facts or law of a

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strongly convincing nature to induce the court to reverse its prior decision. See Kern-Tulare

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Water Dist. v. City of Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and

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reversed in part on other grounds, 828 F.2d 514 (9th Cir. 1987).
Order Denying Plaintiff’s Motion for Leave to Amend (ECF No. 65.)

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A.

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On June 29, 2017, the court issued an order denying Plaintiff’s motion for leave to add

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new defendants to her complaint as futile, on the ground that the continuing violation doctrine

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is not applicable to this case. (ECF No. 65.) Plaintiff now requests reconsideration of the

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court’s decision, arguing that the continuing violation doctrine is applicable to this case because

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“Plaintiff[’s] motion contends a serious of related acts against him.” (ECF No. 68 at 2.)
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Plaintiff’s argument is unpersuasive. In 2002, the United States Supreme Court rejected

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the “related acts” aspect of the continuing violations doctrine. National Railroad Passenger

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Corp. v. Morgan, 536 U.S. 101 (2002); see Carpinteria Valley Farms, Ltd. v. County of Santa

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Barbara, 344 F.3d 822, 828 (9th Cir. 2003); also see Committee Concerning Cmty.

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Improvement v. City of Modesto, 583 F.3d 690, 702 (9th Cir. 2009) (continuing violation

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doctrine held inapplicable because plaintiffs did not show “a pattern or practice of

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discrimination but rather ongoing harm resulting from earlier discrete decisions.”) Plaintiff has

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not set forth facts or law of a strongly convincing nature in his motion for reconsideration to

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induce the court to reverse its prior decision. Therefore, the motion shall be denied.

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B.

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On May 4, 2017, Plaintiff filed a motion for extension of time to file a surreply.1 (ECF

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No. 61.) The court denied the extension of time, because Plaintiff did not have leave of court

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to file a surreply and had not shown good cause to file one. (ECF No. 62.) On May 22, 2017,

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without requesting further leave of court, Plaintiff filed the surreply. (ECF No. 64.) On June

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29, 2017, the court issued an order striking Plaintiff’s improperly filed surreply. (ECF No. 66.)

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Now Plaintiff seeks reconsideration of the court’s order striking the surreply. (ECF No.

Order Striking Surreply (ECF No. 66.)

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68.)

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Wilkinson’s response to Plaintiff’s opposition presented new evidence, and defendant

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Wilkinson did not object to the filing of a surreply. (ECF No. 68.) These arguments are

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unavailing. Plaintiff has not shown any new or different facts or circumstances to cause the

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court to reverse its decision to strike a document that Plaintiff filed in violation of a court order.

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Therefore, the motion for reconsideration on this issue shall be denied.

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III.

Plaintiff argues that his surreply should not have been stricken because defendant

DISQUALIFICATION OF JUDGE - 28 U.S.C. § 455

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Plaintiff requests the disqualification of the undersigned Magistrate Judge Gary S.

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Austin from further participation in this case, under 28 U.S.C. § 455. Plaintiff claims that

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Plaintiff sought to file a response to defendant Wilkinson’s reply to Plaintiff’s opposition to
defendant Wilkinson’s motion to dismiss. (Id.)
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Judge Austin’s court rulings in this action clearly show favoritism to Defendants and bias

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against Plaintiff. Plaintiff claims that Judge Austin deliberately misrepresents facts, ignores

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Plaintiff’s cases on point, intentionally denies all of Plaintiff’s pleadings, and issues decisions

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contrary to law.

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Federal law provides that “[a]ny justice, judge, or magistrate judge of the United States

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shall disqualify himself in any proceeding in which his impartiality might reasonably be

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questioned.” 28 U.S.C. § 455(a). Section (b) of that statute sets forth a number of additional

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grounds for disqualification, including where the judge “has a personal bias or prejudice

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concerning a party,” “personal knowledge of disputed evidentiary facts concerning the

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proceeding,” where “in private practice he served as lawyer in the matter in controversy,” or

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“has been a material witness concerning it.” Id. § 455(b).

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“The standard for judicial disqualification under 28 U.S.C. § 455 is whether a

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reasonable person, with full knowledge of all the circumstances, would harbor doubts about the

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judge’s impartiality.” Matassarin v. Lynch, 174 F.3d 549, 571 (5th Cir. 1999) (citation

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omitted). The standard for bias is an objective one: “it is with reference to the well-informed,

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thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious

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person.” Andrade v. Chojnacki, 338 F.3d 448, 455 (5th Cir. 2003) (quotation marks and

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citation omitted).

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C.

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Plaintiff’s motion must be denied. Plaintiff’s motion identifies no extra-judicial bias,

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prejudice, or favoritism by Judge Austin toward any party. As discussed above, a judge’s

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rulings while presiding over a case do not constitute extra-judicial conduct. In re Focus Media,

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Inc., 378 F.3d at 930. Plaintiff’s disagreement with the court’s rulings is not a legitimate

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ground for seeking disqualification.

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IV.

Discussion

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for reconsideration, filed on July 24, 2017, is DENIED; and

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2.

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Plaintiff’s motion for disqualification of Magistrate Judge Gary S. Austin from
further participation in this case, filed on July 24, 2017, is DENIED.

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IT IS SO ORDERED.
Dated:

July 28, 2017

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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