Bostic et al v. Astrue
Filing
9
ORDER denying 8 Motion for Reconsideration; denying 8 Motion for Recusal. Signed by Judge J. Randal Hall on 07/31/2012. (thb)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
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Plaintiffs,
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v.
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MICHAEL J. ASTRUE, Commissioner *
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of Social Security,
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Defendant.
TAWNASKA BOSTIC and T.B.,
CV 112-082
ORDER
Presently pending before the Court are Plaintiff's motion for
reconsideration and motion for recusal.
(Doc. no. 8.)
For the
reasons set forth below, these motions are DENIED.
I. BACKGROUD
On May 24, 2012, Plaintiff filed suit pro se and on behalf of
her minor daughter seeking judicial review of a decision of the
Social Security Administration. (Doc. no. 1, Ex. A.) On June 27,
2012, this Court issued an Order requiring Plaintiff to show cause
as to why her case should not be dismissed for improper
representation because non-attorney parents cannot proceed pro se
on behalf of their children. (Doc. no. 4.) On July 19, 2012,
Plaintiff responded to the Court's Show Cause Order and requested
that the Court appoint an attorney to represent her daughter in
this action.
(Doc. no. 5.)
The Court subsequently dismissed Plaintiff's case without
prejudice on the ground that Plaintiff failed to comply with the
Show Cause Order. (Doc. no. 6.) Moreover, the Court denied
Plaintiff's request for an attorney because her Complaint did "not
present facts and legal issues so novel and complex as to
constitute exceptional circumstances warranting appointment of
counsel."
(Id. at 2.)
Plaintiff's current motion seeks reconsideration of the
Court's Order dismissing her case. Plaintiff also asserts that she
was treated unfairly and thus asks that her case be reassigned to a
different judge.
II. MOTION FOR RECONSIDERATION
Under Rule 59(e), a party may seek to alter or amend a
judgment in a civil case within twenty-eight days after the entry
of the judgment.
"[R]econsideration of a previous order is 'an
extraordinary remedy, to be employed sparingly.'" Williams v.
Cruise Ships Catering & Serv. Int'l, N.V., 320 F. Supp. 2d 1347,
1358 (S.D. Fla. 2004) (citation omitted) . A movant must "set forth
facts or law of a strongly convincing nature to induce the court to
reverse its prior decision." Cover v. Wal-Mart Stores, Inc., 148
F.R.D. 294, 294 (M.D. Fla. 1993) (citation omitted)
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Although Rule 59(e) does not set forth the grounds for relief,
district courts in this Circuit have identified three grounds for
reconsideration of an order: (1) an intervening change in
controlling law; (2) the availability of new evidence; and (3) the
need to correct clear error or prevent manifest injustice.
See,
e.g., Ctr. for Biological Diversity v. Hamilton, 385 F. Supp. 2d
1330, 1337 (N.D. Ga. 2005); Sussman v. Salem, Saxon & Nielsen,
P.A., 153 F.R.D. 689, 694 (M.D. Ga. 1994).
"Motions for reconsideration should not be used to raise legal
arguments which could and should have been made before the judgment
was issued." Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th
Cir. 1998) .
Further, Rule 59(e) "is not a vehicle for rehashing
arguments already rejected by the court or for refuting the court's
prior decision." Wendy's Int'l v. Nu-Cape Const., Inc., 169 F.R.D.
680, 686 (M.D. Ga. 1996)
Plaintiff has not set forth any grounds for relief under Rule
59(e) to justify a finding that the Court should alter its previous
Order. As noted above, a motion for reconsideration is not a
vehicle for refuting the Court's prior decision, and Plaintiff's
motion is an attempt to do just that. Plaintiff has not presented
any evidence of an intervening change of law. Instead, she argues
that when a party does not have counsel, "the Court can sometime
[sic] appoint counsel . . . like in a criminal case."
at 1.)
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(Doc. no. 8
Plaintiff is correct that in criminal cases, the Court will
appoint counsel if it is satisfied that the defendant is
financially unable to obtain counsel.
See 18 U.S.C. § 3006a(b).
However, the present action is not a criminal case, but rather a
civil case in which Plaintiff seeks a review of a decision of the
Social Security Administration. As explained in the Court's prior
Order, a plaintiff in a civil case does not have a constitutional
right to counsel, and the Court should appoint counsel only in
exceptional circumstances. Bass v. Perrin, 170 F.3d 1312, 1320
(11th Cir. 1999) . "Exceptional circumstances" include the presence
of "facts and legal issues [which] are so novel or complex as to
require assistance of a trained practitioner." Kilgo v. Ricks, 983
F.2d 189, 193 (11th Cir. 1993).
The Court previously found that Plaintiff's Complaint did not
present facts and legal issues so novel and complex as to
constitute exceptional circumstances warranting appointment of
counsel, and Plaintiff failed to present any evidence to establish
that such a conclusion was erroneous. The Court reiterates that
Plaintiff is free to pursue this case so long as she obtains an
attorney to represent the interests of her minor child.
In
conclusion, the Court notes that it has thoroughly considered the
issues that form the basis of its prior ruling and finds neither a
reason nor a legal basis for reconsidering the decision to dismiss
this case.
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III. MOTION FOR RECUSAL
Plaintiff also asks the Court to reassign this case to a
different judge. This request has been construed as a motion for
recusal. Recusal is governed by 28 U.S.C. § 144 and 455. Jones
V. Commonwealth Land Title Ins. Co., 459 Fed. Appx. 808, 810
(2012) . Under § 144, a judge must recuse himself when a party to a
district court proceeding "files a timely and sufficient affidavit
that the judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any adverse
party."
28 U.S.C. § 144.
"To warrant recusal under § 144, the
moving party must allege facts that would convince a reasonable
person that bias actually exists."
1324, 1333 (11th Cit. 2000).
Christo v. Padgett, 223 F.3d
Section 455(a) instructs a federal
judge to disqualify himself if "his impartiality might reasonably
be questioned."
28 U.S.C. § 455(a). The standard of review for a
Section 455(a) motion is "whether an objective, disinterested, lay
observer fully informed of the facts underlying the grounds on
which recusal was sought would entertain a significant doubt about
the judge's impartiality," Parker v. Connors Steel Co., 855 F.2d
1510, 1524 (11th Cir. 1988) . Any doubts must be resolved in favor
of recusal.
United States v. Kelly, 888 F.2d 732, 744 (11th Cir.
1989)
Mere, Plaintiff has not filed an affidavit with the Court, and
therefore S 144 may not serve
as a basis
for recusal. With regard
to recusal under § 455, Plaintiff bases her motion on her
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disagreement with my prior ruling in this case. However,
disqualification "may not be predicated on the judge's rulings in
the instant case or in related cases." Deems v. C.I.R., 426 Fed.
Appx. 839, 843 (11th Cir. 2011) (citing Phillips v. Joint Legis.
Comm. on Performance and Expenditure Review of the State of Miss.,
637 F.2d 1014, 1020 (5th Cir. 1981)). Moreover, adverse rulings do
See Hamm v. Members of Bd. of
not constitute pervasive bias.
Re q ents of State of Fla., 708 F.2d 647, 651 (11th Cir. 1983).
Because Plaintiff has not put forth any evidence raising doubts as
to my impartiality, I decline to recuse myself from the present
action.
IV. CONCLUSION
Based on the foregoing, Plaintiff's motion for reconsideration
and motion for recusal (doc. no. 8) are DENIED.
ORDER ENTERED at Augusta, Georgia, this
3j
day of July,
2012.
HONO' J. RMDAL HALL
UNITE STATES DISTRICT JUDGE
SOU.RN DISTRICT OF GEORGIA
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