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Anthony E. Mack v. A. Frazier

May 7, 2013

ANTHONY E. MACK,
PLAINTIFF,
v.
A. FRAZIER, ET AL., DEFENDANTS.



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

ORDER DENYING PLAINTIFF'S MOTIONS (1) TO STRIKE (2) FOR RECONSIDERATION (3) FOR RECUSAL ORDER GRANTING FURTHER THIRTY (30) DAY EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT (ECF No. 15)

I. PROCEDURAL HISTORY

Plaintiff Anthony E. Mack is a state prisoner proceeding pro se and in forma pauperis in this civil rights action filed January 11, 2010 pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court dismissed the Complaint on January 30, 2013 for failure to state a claim, but gave leave to file an amended pleading by not later than March 5, 2013. (ECF No. 10.) Plaintiff requested and was granted a further extension of time, through April 9, 2013, to file his amended pleading. (ECF No. 12.) On March 26, 2013, Plaintiff requested an unspecified stay of this action pending resolution of unconstitutional living conditions and return of personal and legal property confiscated as a result of a recent disciplinary segregation. (ECF No. 13.) On March 28, 2013, the Court denied the stay, but granted Plaintiff a further thirty day extension to file his first amended complaint. (ECF No. 14.)

Pending before the Court are Plaintiff's Motions to strike and reconsider the March 28th Order. (ECF No. 15.) Plaintiff's Motions also attribute bias to the undersigned and are construed as a request that the undersigned recuse himself.

II. ARGUMENT

Plaintiff has been without his personal property and legal materials for five months. He needs a stay of proceedings because unspecified prison officials are collaborating with Defendants to prevent timely return of property and legal materials needed to prepare his amended pleading. (ECF 15 at 2:22-24.)

The Court is biased against Plaintiff, ruling incorrectly that the property deprivation is a temporary separation resulting from inmate discipline. Defendants do not intent to reunite Plaintiff with his property and legal materials within a reasonable time.

Defendants would not be prejudiced by the stay because they are the ones preventing Plaintiff from proceeding.

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 ...


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