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Robert Hackworth v. P. Rangel

April 16, 2013

ROBERT HACKWORTH,
PLAINTIFF,
v.
P. RANGEL, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DENYING (1) RECONSIDERATION OF ORDER DENYING APPOINTMENT OF COUNSEL (2) REQUEST FOR CONSIDERATION OF RECUSAL (ECF No. 100)

I. PROCEDURAL HISTORY

Plaintiff Robert Hackworth is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed July 6, 2006 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) This matter proceeds on Plaintiff's excessive force claim against Defendant Rangel. (ECF No. 20.) The Court granted Defendant Rangel's motion for summary judgment on October 6, 2011 and dismissed this action. (ECF Nos. 77 & 78.) Plaintiff initiated an appeal on October 17, 2011. (ECF No. 79.) The United States Court of Appeals for the Ninth Circuit vacated the Court's summary judgment and remanded the matter for further proceedings on September 12, 2012. (ECF No. 90.) Trial in this matter is set for October 22, 2013. (ECF No. 92.)

Pending before the Court is Plaintiff's Motion of Objection (ECF 100) seeking reconsideration of the Court's April 2, 2013 Order Denying Motion Requesting Appointment of Counsel. (ECF No. 99). Plaintiff asserts extraordinary circumstances supporting appointment of counsel and requests the undersigned consider recusal. The Motion is now before the Court.

II. ARGUMENT

Plaintiff asserts that he can not represent himself at trial because he may not be able to express himself well verbally; his access to the law library is limited to two hours every six months; he has attempted to secure counsel on his own with no success; other inmates have assisted him with his filings; his underlying Eighth Amendment claim is very complex; and the undersigned, who issued Findings and Recommendations granting summary judgment subsequently vacated by the Ninth Circuit, may be predisposed against him on that basis. (ECF 100 at 1-2.)

III. ANALYSIS

A. MOTION FOR RECONSIDERATION

1. Legal Standard

Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from an order and judgment for any reason that justifies relief. Rule 60(b)(6) "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008). The moving party "must demonstrate both injury and circumstances beyond his control . . . ." Id. In seeking reconsideration of an order, Local Rule 230(j) requires a party to identify the motion or order in issue and when it was made, and show "what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion."

"A motion for reconsideration should not be granted, absent highly unusual circumstances, unless the . . . court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law," Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009), and "[a] party seeking reconsideration must show more than a disagreement with the [c]court's decision, and recapitulation . . ." of that which was already considered by the court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).

2. No Basis for Reconsideration

Plaintiff seeks reconsideration based upon facts and circumstances previously considered and ruled upon. Limited communication skills and education and reliance on fellow inmates in prosecuting matters do not reflect exceptional circumstances for appointment of counsel. The Court has had before it hundreds of such cases which have progressed through discovery, law and motion activity and even trial despite plaintiff's limited communication skills and education. These very arguments for appointment of counsel were previously considered and rejected by the Court. (ECF Nos. 98, 99.)

The record in this matter suggests that, even assuming the limitations he asserts, Plaintiff can sufficiently prosecute what appears to be relatively straightforward ...


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