Vasquez v. Paramo et al
Filing
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ORDER Denying 52 Plaintiff's Motion for Reconsideration and Motion for Recusal of Magistrate Judge. Signed by Magistrate Judge Mitchell D. Dembin on 10/8/19. (All non-registered users served via U.S. Mail Service)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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HENRY VASQUEZ,
Case No.: 18cv2097-GPC-MDD
Plaintiff,
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v.
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N. UHDE, Correctional Officer,
Defendant.
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ORDER DENYING PLAINTIFF'S
MOTION FOR
RECONSIDERATION AND
MOTION FOR RECUSAL OF
MAGISTRATE JUDGE
[ECF No. 52]
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Plaintiff Henry Vasquez (“Plaintiff”), a state prisoner proceeding pro se
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and in forma pauperis, moves the Court to reconsider its August 22, 2019
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Order denying Plaintiff’s motion for appointment of counsel. (ECF No. 52).
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Plaintiff also moves for the recusal of Magistrate Judge Mitchell D. Dembin.
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(Id.). For the reasons discussed herein, the Court DENIES Plaintiff’s
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motion.
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I.
MOTION FOR RECONSIDERATION
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A motion for reconsideration may be brought under Federal Rules of
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Evidence 59(e) or 60(b). A motion is treated as a motion to alter or amend
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judgment under Rule 59(e) if it is filed within twenty-eight days of entry of
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18cv2097-GPC-MDD
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judgment or the ruling; otherwise, it is treated as a Rule 60(b) motion for
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relief from a judgment or order. Am. Ironworks & Erectors, Inc. v. N. Am.
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Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001). Here, the Order Plaintiff
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seeks reconsideration of was filed on August 22, 2019. (ECF No. 48).
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Accordingly, Plaintiff’s motion is properly brought under Rule 60(b), as it was
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filed more than twenty-eight days ago.1 See Am. Ironworks & Erectors, Inc.,
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248 F.3d at 898-99.
Pursuant to Rule 60(b), district courts have the power to reconsider a
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previous ruling or entry of judgment. Fed. R. Civ. P. 60(b). Reconsideration
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under Rule 60(b) may be granted in the case of: (1) mistake, inadvertence,
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surprise or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if
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(4) the judgment is void; (5) the judgment has been satisfied; or (6) for any
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other reason justifying relief. See Fed. R. Civ. P. 60(b).
In its Order, the Court noted that although Plaintiff’s complaint
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survived initial screening and an early summary judgment motion, his
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“claims are not particularly complex” and he demonstrated neither
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exceptional circumstances nor a likelihood of success on the merits. (ECF No.
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48). Plaintiff contends the Court erred in denying his motion for appointment
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of counsel for lack of exceptional circumstances and for failure to demonstrate
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a likelihood of success on the merits. (ECF No. 52). He maintains that courts
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may exercise their discretion to appoint counsel where a Plaintiff survives
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summary judgment and that the Court’s scheduling order regulating
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discovery and pre-trial proceedings shows Plaintiff has demonstrated a
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likelihood of success on the merits. (Id. at 2, 4). Plaintiff further argues his
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Plaintiff signed the proof of service more than twenty-eight days after the Order was
filed. (See ECF No. 52 at 33).
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18cv2097-GPC-MDD
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medical treatment makes it “impossible” to obtain the expert disclosures and
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that the Court should consider his limited legal knowledge and difficulty
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accessing the law library and research materials due to a physical disability.
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(Id. at 3, 5, 9).
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District courts lack authority to require counsel to represent indigent
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prisoners in 42 U.S.C. § 1983 cases. Mallard v. United States Dist. Court,
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490 U.S. 296, 298 (1989). In exceptional circumstances, the court may
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request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. §
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1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). Courts
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consider a plaintiff’s likelihood of success on the merits as well as the
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plaintiff’s ability to articulate his claims pro se in light of the complexity of
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the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).
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In light of Plaintiff’s arguments, the Court focuses its analysis on exceptional
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circumstances and Plaintiff’s likelihood of success on the merits.
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As indicated previously, Plaintiff did survive an early motion for
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summary judgment for exhaustion of administrative remedies, but the
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Court’s ruling did not demonstrate a likelihood of success on the merits
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regarding the claims against the sole remaining defendant. (See ECF No.
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25). Rather, the Court’s ruling demonstrates that Plaintiff exhausted
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available remedies, as required by 42 U.S.C. § 1997e(a), only as to one
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defendant and that his claims could only proceed against Defendant Uhde.
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(See id.). However, Plaintiff has not yet survived a motion for summary
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judgment on the substantive merits of his claims. (See ECF No. 35 at 2
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(setting the deadline to file pretrial motions, such as a motion for summary
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judgment on the substantive merits, for March 6, 2020)). As such, Plaintiff
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has not demonstrated the “exceptional circumstances” required for the Court
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to appoint counsel. See Rios v. Paramo, No. 14-cv-01073-WQH (DHB), 2016
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U.S. Dist. LEXIS 106523, at *9 (S.D. Cal. Aug. 11, 2016); Garcia v. Smith,
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No. 10cv1187 AJB (RBB), 2012 U.S. Dist. LEXIS 89147, at *9-10 (S.D. Cal.
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June 27, 2012).
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With respect to Plaintiff’s inability to obtain expert disclosures due to
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his medical treatment, a pro se litigant’s difficulty conducting discovery is
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insufficient to satisfy the exceptional circumstances standard. See Wilborn v.
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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“If all that was required to
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establish successfully the complexity of the relevant issues was a
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demonstration of the need for development of further facts, practically all
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cases would involve complex legal issues.”). Similarly, circumstances
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common to most prisoners, such as lack of legal education, limited law library
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access, mental illness and disability, or deficient general education, do not
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amount to exceptional circumstances. See, e.g., Wood v. Housewright, 900
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F.2d 1332, 1335-36 (9th Cir. 1990) (affirming denial of appointment of
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counsel where plaintiff lacked legal education and had limited law library
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access); Galvan v. Fox, No. 2:15-CV-01798-KJM (DB), 2017 U.S. Dist. LEXIS
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56280, at *23 (E.D. Cal. Apr. 12, 2017) (“Circumstances common to most
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prisoners, such as lack of legal education and limited law library access, do
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not establish exceptional circumstances to warrant a request for voluntary
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assistance of counsel.”); Jones v. Kuppinger, 2:13-CV-0451 WBS AC, 2015
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U.S. Dist. LEXIS 124606, at *11 (E.D. Cal. Sept. 17, 2015) (“Circumstances
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common to most prisoners, such as deficient general education, lack of
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knowledge of the law, mental illness and disability, do not in themselves
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establish exceptional circumstances . . . .”).
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Accordingly, the Court DENIES Plaintiff’s motion for reconsideration.
II.
MOTION FOR RECUSAL
Plaintiff also “moves to disqualify Magistrate Judge . . . Mitchell D.
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Dembin” pursuant to 28 U.S.C. § 144. (ECF No. 52 at 1, 6). Section 144
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requires a party to show “personal bias or prejudice either against him or in
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favor of any adverse party[.]” 28 U.S.C. § 144. “The standard for recusal is
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‘whether a reasonable person with knowledge of all the facts would conclude
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that the judge’s impartiality might reasonably be questioned.’” Mayes v.
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Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (quoting United States v. Nelson,
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718 F.2d 315, 321 (9th Cir. 1983)). To provide adequate grounds for recusal,
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the prejudice must result from an extrajudicial source as a judge’s previous
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adverse ruling alone is insufficient for recusal. See id. “A judge’s previous
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adverse ruling alone is not sufficient bias.” Id.
Here, Plaintiff does not allege facts that would support the contention
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that the Undersigned exhibits bias or prejudice directed towards him or in
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favor of Defendant from an extrajudicial source. Plaintiff’s motion for recusal
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alleges bias and prejudice arising out of prior rulings denying appointment of
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counsel. (ECF No. 52 at 13). These are not proper grounds to disqualify a
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judge for bias and prejudice. See Mayes, 729 F.2d at 607. As a result, there
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is no reason why a reasonable person with knowledge of all the facts would
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question the Undersigned’s impartiality in this case. Therefore, the Court
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DENIES Plaintiff’s motion for recusal.
III. CONCLUSION
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Based on the foregoing, the Court DENIES Plaintiff’s motion for
reconsideration and Plaintiff’s motion for recusal.
IT IS SO ORDERED.
Dated: October 8, 2019
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