Stoller v. Bank of New York Mellon Trust Company et al

Filing 63

ORDER denying 47 Plaintiff's Motion to recuse. Pursuant to the Order filed on July 25, 2011, the Clerk must enter a judgment of dismissal of this action without prejudice. IT IS FURTHER ORDERED denying 19 Motion to Dismiss; denying 32 Motion to Stay; denying 33 Motion to Appoint guardian ad Litem; denying 34 Motion for Judgment on the Pleadings; denying 34 Motion for Preliminary Injunction; denying 34 Motion for TRO; denying 39 Motion for Extension of Time to File R esponse/Reply; denying 40 Motion for Order to Show Cause; and denying 49 Motion to Stay. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this decision would not be taken in good faith. Signed by Judge G Murray Snow on 11/7/11.(LSP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Christopher Stoller,

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Plaintiff,
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vs.
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Bank of New York Mellon Trust)
Company, et al.,
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Defendants.
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No. CV 11-01105-GMS-JRI
ORDER

Several motions are pending before the Court in this matter. For the reasons discussed

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below, those motions will be denied and this case dismissed.

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I.

Background

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Plaintiff Christopher Stoller, who was then confined in the Lake County Adult

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Corrections Facility, in Waukegan, Illinois, filed a pro se Complaint asserting fraud claims

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and violations of his constitutional rights under 42 U.S.C. § 1983 with a pro se motion to

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proceed in forma pauperis.1 (Doc. 1.) Plaintiff failed to use this District’s court-approved

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form. (Id.) In an Order filed on July 25, 2011, this Court denied Plaintiff’s in forma

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pauperis motion with leave to file a new in forma pauperis application within 30 days using

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In filings in another action, Bank of New York Mellon v. Ribadeneira, CV11-1765PHX-GMS, Plaintiff in this case, Christopher Stoller, indicated that he had been convicted
and transferred to the Dixon Correctional Center, doc. 13. He has not filed a notice of
change of address in this case, nor apparently filed a notice of change of address with the
Ninth Circuit Court of Appeals.

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this District’s required form. (Doc. 9.) On August 3, 2011, Plaintiff filed a motion for

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injunctive relief, a notice of interlocutory appeal concerning the denial of his in forma

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pauperis motion, and a motion for leave to appeal in forma pauperis. (Doc. 10, 11, 12.) This

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Court denied Plaintiff’s motion for leave to proceed in forma pauperis on appeal as not taken

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in good faith. (Doc. 16.) By separate order, the Court also denied Plaintiff’s motion for

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injunctive relief. (Doc. 17.) Plaintiff filed a second interlocutory appeal concerning the

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denial of injunctive relief and he also filed a motion for leave to proceed in forma pauperis

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in that appeal and a motion for stay pending appeal. (Doc. 21, 22.) In an Order filed on

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August 10, 2011, those motions were denied and this Court certified that Plaintiff’s

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interlocutory appeals were not taken in good faith. (Doc. 27.)

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On October 5, 2011, the Ninth Circuit Court of Appeals dismissed Plaintiff’s first

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interlocutory appeal for lack of jurisdiction. (Doc. 60.) The Ninth Circuit denied Plaintiff’s

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motion to proceed in forma pauperis on appeal finding that the appeal “appear[ed] to be

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frivolous.” Stoller, No. 11-16967 (9th Cir. Sept. 13, 2011). On November 7, 2011, the Ninth

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Circuit

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docketing/filing fees in the case. Id. (9th Cir. Nov. 7, 2011).

dismissed Plaintiff’s second interlocutory appeal for failure to pay the

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During the pendency of Plaintiff’s interlocutory appeals, both parties have filed

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motions or other filings. One such matter is a judicial misconduct complaint filed by Plaintiff

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concerning the undersigned, which the Court construes as a motion to recuse. For the

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reasons discussed below, Plaintiff’s motion to recuse will be denied. Further, because

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Plaintiff has failed to comply with the Court’s July 25, 2011 Order, doc. 9, the remaining

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motions will be summarily denied and this action dismissed for failure to comply with Court

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orders.

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II.

Motion to Recuse

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As stated above, Plaintiff has filed a motion for recusal against the undersigned.

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Plaintiff complains that the Court has failed “to remand the Defendants for the pejorative

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comments made against [him] in their briefs.” (Doc. 47 at 1.) Specifically, Plaintiff cites the

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Defendants’ repeated references to him as a vexatious litigant when he has not been found

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to be such by any court. Plaintiff also complains that Defendants’ pejorative statements

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about him have triggered bouts of depression. Plaintiff otherwise faults the Court for denial

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of various motions filed by him, citing 28 U.S.C. §§ 144, 351, and 455.

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As an initial matter, the Court considers whether recusal in this matter pursuant to 28

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U.S.C. § 455 is appropriate. Section 455(a) provides that a United States judge or magistrate

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judge “shall disqualify” himself in any proceeding in which his “impartiality might

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reasonably be questioned.” Section 455(b)(1) provides that a judge must also disqualify

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himself, where he “has a personal bias or prejudice concerning a party, or personal

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knowledge of disputed evidentiary facts concerning the proceeding[.]” Recusal pursuant to

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§ 455(b) is required only if the bias or prejudice stems from an extra-judicial source, not

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from conduct or rulings during the course of the proceedings. See Hasbrouck v. Texaco,

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Inc., 842 F.2d 1034, 1046 (9th Cir. 1987), aff’d, 496 U.S. 543 (1990); United States v.

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Studley, 783 F.2d 934, 939 (9th Cir. 1986) (judge’s prior adverse rulings are insufficient

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cause for recusal). “[J]udicial rulings alone almost never constitute [a] valid basis for a bias

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or partiality motion.” Liteky v. United States, 114 S.Ct. 1147, 1157 (1994). Adverse rulings

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should be appealed; they do not form the basis for a recusal motion. Further, where the judge

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forms opinions in the courtroom, either in the current proceeding or in a prior proceeding,

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these opinions “do not constitute a basis for a bias or partiality motion unless they display

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a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id.

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Plaintiff fails to allege or show any basis for recusal under § 455. Rather, he

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complains of this Court’s rulings, or the perceived failure to rule, on Defendants’

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characterizations of Plaintiff in filings in this, and other, cases in which Plaintiff has

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appeared. As discussed above, that is not a basis upon which the Court’s impartiality might

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reasonably be questioned for purposes of § 455(a). Moreover, the Court does not have a

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personal bias or prejudice concerning Plaintiff or other potential parties to this action or

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personal knowledge of disputed evidentiary facts concerning this proceeding. The Court

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therefore finds that recusal is not warranted pursuant to § 455.

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Plaintiff also appears to seek disqualification of the Court under 28 U.S.C. §§ 144 and
351. Section 144 provides:

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Whenever a party to any proceeding in a district court makes and 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, such judge shall proceed no further therein, but another judge
shall be assigned to hear such proceeding.

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The affidavit shall state the facts and the reasons for the belief that bias
or prejudice exists, and shall be filed not less than ten days before the
beginning of the term at which the proceeding is to be heard, or good cause
shall be shown for failure to file it within such time. A party may file only one
such affidavit in any case. It shall be accompanied by a certificate of counsel
of record stating that it is made in good faith.

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28 U.S.C. § 144 (emphasis added).

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In this case, Plaintiff has not filed a “timely and sufficient affidavit.” He merely faults

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the undersigned for failing to order the Defendants to cease referring to him by what he

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perceives as pejorative terms. That is not a basis supporting disqualification pursuant to

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§ 144.

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Finally, section 351(a) provides that:

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Filing of complaint by any person.– Any person alleging that a judge
has engaged in conduct prejudicial to the effective and expeditious
administration of the business of the courts, or alleging that such judge is
unable to discharge all the duties of office by reason of mental or physical
disability, may file with the clerk of the court of appeals for the circuit a
written complaint containing a brief statement of the facts constituting such
conduct.

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28 U.S.C. § 351(a). Plaintiff’s complaint was not filed with the clerk of the court of appeals

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for the Ninth Circuit. Accordingly, to the extent that Plaintiff seeks relief pursuant to §

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351(a), he failed to properly file his complaint.

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Plaintiff has not alleged facts or shown that the Court has a personal bias or prejudice

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concerning Plaintiff or other parties to this action or personal knowledge of disputed

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evidentiary facts concerning this proceeding. Plaintiff also has not filed a timely and

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sufficient affidavit that supports that this Court has a personal bias or prejudice against him

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or in favor of other parties to this case. Finally, his judicial complaint is not properly before

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this Court to the extent that he brings pursuant to 28 U.S.C. § 351(a). The Court therefore

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finds that neither recusal, nor disqualification are warranted and Plaintiff’s complaint of

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judicial misconduct, construed as a motion for recusal or disqualification, will be denied.

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III.

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Remaining Motions
Several motions remain pending. The Court will dismiss this action and deny these

motions as moot.

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In its July 25, 2011 Order, the Court informed Plaintiff of the following:

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When bringing an action, a prisoner must either pay the $350.00 filing
fee in a lump sum or, if granted the privilege of proceeding in forma pauperis,
pay the fee incrementally as set forth in 28 U.S.C. § 1915(b)(1). An
application to proceed in forma pauperis requires an affidavit of indigence and
a certified copy of the inmate’s trust account statement for the six months
preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate
must submit statements from each institution where he was confined during the
six-month period. Id. To assist prisoners in meeting these requirements, the
Court requires use of a form application. LRCiv 3.4(a).

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If a prisoner is granted leave to proceed in forma pauperis, the Court
will assess an initial partial filing fee of 20% of either the average monthly
deposits or the average monthly balance in Plaintiff’s account, whichever is
greater. 28 U.S.C. § 1915(b)(1). An initial partial filing fee will only be
collected when funds exist. 28 U.S.C. § 1915(b)(4). The balance of the fee
will be collected in monthly payments of 20% of the preceding month’s
income credited to an inmate’s account, each time the amount in the account
exceeds $10.00. 28 U.S.C. § 1915(b)(2).

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(Doc. 9 at 1-2.)

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Because Plaintiff failed to use this District’s approved form or to provide the

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statutorily required information, the Court denied Plaintiff’s motion to proceed in forma

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pauperis, but granted him 30 days in which to either pay the $350.00 filing fee or file an

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Application to Proceed In Forma Pauperis using the court-approved form. (Id.) The Court

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explicitly informed Plaintiff that the failure to either pay the $350.00 filing fee or to file an

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Application to Proceed In Forma Pauperis using the court-approved form would result in the

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dismissal of this case without prejudice. (Id.)

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Plaintiff has neither paid the filing fee nor submitted the court-approved form
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Application to Proceed In Forma Pauperis for use by inmates. Instead, on September 14,

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2011, Plaintiff filed a document captioned “Judicial Notice” in which he asserts that the

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“appropriate officer of the Lake County Jail would not sign the in forma pauperis form” and

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jail policy prevents inmates from making photocopies. (Doc. 52.) Even assuming jail

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officials refused to provide a six month inmate account statement or to complete the account

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certification, Plaintiff has failed to complete and file his portion of this District’s approved

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in forma pauperis application. Plaintiff’s contention that jail officials refuse to allow inmates

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to make photocopies is not credible in light of Plaintiff’s voluminous filings in this, and

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other, cases while incarcerated. Because Plaintiff has failed to pay the filing fee or to file an

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Application to Proceed In Forma Pauperis on this District’s approved form, the Court will

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dismiss this action without prejudice and deny the remaining motions as moot.

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IT IS ORDERED:

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(1)

Plaintiff’s motion to recuse is denied. (Doc. 47.)

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(2)

Pursuant to the Order filed on July 25, 2011, the Clerk of Court must enter a

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judgment of dismissal of this action without prejudice.

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(3)

The parties’ pending motions are denied. (Doc. 19, 32, 33, 34, 39, 40, 49.)

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(4)

The docket shall reflect that the Court certifies, pursuant to 28 U.S.C.

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§ 1915(a)(3) and Federal Rules of Appellate Procedure 24(a)(3)(A), that any appeal of this

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decision would not be taken in good faith.

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DATED this 7th day of November, 2011.

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