Reed v. Barcklay et al

Filing 255

ORDER - IT IS ORDERED that Plaintiff's Motion to Recuse Magistrate Judge and Objections to the Magistrate Judge's Orders of December 27, 2012 and January 25, 2013 (Doc. 213 and 214 ) is denied and the objections are overruled. IT IS FU RTHER ORDERED that Plaintiff's Supplement to his Motion to Recuse and Objections to the Magistrate Judge's Order of February 5, 2013 (Doc. 215 ) is denied and the objections are overruled. IT IS FURTHER ORDERED that Plaintiff's Objec tions to Magistrate Judge's Order of April 30, 2013 (Doc. 245 and Doc. 246 ) are overruled. The Magistrate Judge's Orders of December 27, 2012 (Doc. 191 ), February 5, 2013(Doc. 209 ), and January 25, 2013 Order (Doc. 202 ), and April 30, 2013 Order (Doc. 235 ) are affirmed. (See document for full details). Signed by Senior Judge James A Teilborg on 7/9/13. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kenneth W. Reed,
Plaintiff,

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vs.

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Karen Barcklay, et al.,
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Defendant.
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No. CV-11-01339-PHX-JAT (BSB)
ORDER

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Pending before the Court are: (1) Plaintiff’s Motion to Recuse Magistrate Judge and

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Objections to the Magistrate Judge’s Orders of December 27, 2012 and January 25, 2013

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(Doc. 213 and 214); (2) Plaintiff’s Supplement to his Motion to Recuse and Objections to the

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Magistrate Judge’s Order of February 5, 2013 (Doc. 215); and (3) Plaintiff’s Objections to

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Magistrate Judge’s Order of April 30, 2013 (Doc. 245 and Doc. 246).

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I.

BACKGROUND

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On October 3, 2011, Plaintiff, who is confined in the Arizona State Prison

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Complex-Yuma in San Luis, Arizona, filed an amended pro se civil rights Complaint (Doc.

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Plaintiff filed objections to the Magistrate Judge’s December 27, 2012, January 25,

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2013, and February 5, 2013 Orders. Plaintiff also filed a Motion to Recuse the Magistrate

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Judge. The Court now rules on Plaintiff’s objections and the Motion to Recuse.

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II.

OBJECTIONS TO THE MAGISTRATE JUDGE’S ORDERS

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The Federal Magistrates Act, 28 U.S.C. §§ 631-639, “distinguishes between

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nondispositive matters under 28 U.S.C. § 636(b)(1)(A) and dispositive matters heard

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pursuant to 28 U.S.C. § 636(b)(1)(B).” United States v. Abonce-Barrera, 257 F.3d 959, 968

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(9th Cir. 2001). “Under 28 U.S.C. § 636(b)(1)(A), a district judge may designate a

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magistrate judge to hear any nondispositive pretrial matter pending before the court.” Estate

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of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993) (emphasis in original).
When a pretrial matter not dispositive of a party’s claim or
defense is referred to a magistrate judge to hear and decide, the
magistrate judge must promptly conduct the required
proceedings and, when appropriate, issue a written order stating
the decision. A party may serve and file objections to the order
within 14 days after being served with a copy. A party may not
assign as error a defect in the order not timely objected to. The
district judge in the case must consider timely objections and
modify or set aside any part of the order that is clearly erroneous
or is contrary to law.

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Fed. R. Civ. P. 72(a). The Court will thus review the Magistrate Judge’s decisions of law
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de novo, and decisions of fact only for clear error. See id.; 28 U.S.C. § 636(b)(1)(A); see
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Abonce-Barrera, 257 F.3d at 967.
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A.

The December 27, 2012 Order (Doc. 191)1

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On December 27, 2012, the Magistrate Judge denied Plaintiff’s Modified/Censored
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Second Motion to Compel Compliance with Plaintiff’s Request for Production of Medical
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Records and Motion for Issuance of Order to Show Cause Why Sanctions should not be
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Imposed (Doc. 161).
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In his Motion, Plaintiff argued that Defendants failed to produce medical records that
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Defendants obtained from the Arizona Department of Corrections (“ADC”) in accordance
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Defendants argue that Plaintiff’s objection to the Court’s December 27, 2012 Order
is untimely pursuant to Federal Rule of Civil Procedure 72(a) because it was filed on
February 11, 2013. However, on June 22, 2012, the Magistrate Judge ordered that, when a
timely motion for reconsideration was filed, the time to object to the underlying order would
be extended to 14 days after the ruling on a motion for reconsideration of that order (Doc.
99). Accordingly, Plaintiff’s objection to the December 27, 2012 Order was timely pursuant
to the Magistrate Judge’s June 22, 2012 Order.
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with the conditions set forth in the Court’s June 22, 2012 Order. In his Motion, Plaintiff

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specifically complained that Defendants did not produce his medical records in an orderly

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fashion and that certain records were missing. Plaintiff also argued that Defendants failed

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to produce medical records maintained in the ADC’s Adult Information Audit Management

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System (“AIMS records”).

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In denying Plaintiff’s motion, the Magistrate Judge found “no reason to doubt

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Defendants’ representation that [Defendants] provided Plaintiff with all of the medical

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records that they received from the ADC.” (Doc. 191 at 4). As a result, the Magistrate Judge

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found that Defendants produced Plaintiff’s medical records in compliance with her June 22,

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2012 Order and that there was no basis for compelling further production.

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Plaintiff objects to the Magistrate Judge’s findings and argues that those findings are

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contradicted by “all of the evidence” Plaintiff submitted in support of his motion in the form

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of his affidavit. Plaintiff argues that he submitted a sworn statement in support of his motion

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attesting that (1) the medical records produced by Defendants were not in the same order that

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Plaintiff had previously seen them kept, were not otherwise correspondingly categorized and

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labeled, and were not in chronological order; (2) that Plaintiff was able to identify 29

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documents missing from his medical records in addition to two notes and a voided

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prescription2; (3) that Defendants failed to produce Plaintiff’s county jail medical records;

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(4) that Defendants failed to produce all of the electronically stored data comprising his

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medical record; and (5) that Defendants have not been allowing Plaintiff to examine the

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original documents contained in his medical records. Plaintiff argues that the Magistrate

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Judge’s decision to deny Plaintiff’s motion must have been premised on the Magistrate

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Judge’s belief that “Plaintiff was lying” in his sworn statement. As a result, Plaintiff argues

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that the December 27, 2012 Order must be vacated because it contradicts the evidence

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contained in Plaintiff’s sworn statement.

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Plaintiff now asserts that he has identified 54 documents missing from the records
produced by Defendants. (Doc. 214 at 3 n. 2).
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Contrary to Plaintiff’s conclusions, nothing in the December 27, 2012 Order suggests

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that the Magistrate Judge concluded that Plaintiff was lying. The Magistrate Judge

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concluded that there was no evidence that would give her reason to doubt Defendants’

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representations that they provided Plaintiff with all of the medical records received from the

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ADC. Nothing in Plaintiff’s sworn statement contradicts this conclusion. Rather, the

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Magistrate Judge undertook a careful examination of each of Plaintiff’s arguments and

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nothing in that examination is contradicted by Plaintiff’s sworn statement.

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There is no indication of clear error in the Magistrate Judge’s factual findings.

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Further, there is no evidence that the Magistrate Judge abused her discretion in the

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interpretation of her own Order and finding that Defendants had complied with that Order.

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For the foregoing reasons, the Magistrate Judge’s December 27, 2012 Order (Doc. 191) is

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affirmed.

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B.

The January 25, 2013 Order (Doc. 202)

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Plaintiff next objects to the Magistrate Judge’s Order denying Plaintiff’s Motion for

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Reconsideration of the December 27, 2012 Order or, in the Alternative, Request to Report

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Criminal Misconduct to the United States Attorney’s Office. The Magistrate Judge denied

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the Motion for Reconsideration because Plaintiff failed to meet the standard for

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reconsideration as set forth in Local Rule of Civil Procedure 7.2(g)(1). (Doc. 202 at 1).

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Plaintiff does not argue that he did, indeed, meet the standard for reconsideration as set forth

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in Local Rule of Civil Procedure 7.2(g)(1).

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Rather, Plaintiff asserts that the Magistrate Judge erred in her denial of his request to

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refer the perjury charges against him to the United States Attorney’s Office. Plaintiff’s

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request for this referral was apparently based on his unwarranted conclusion that the

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Magistrate Judge must have believed Plaintiff was lying in his sworn statement and such

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belief was the basis for her December 27, 2012 ruling.

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Plaintiff’s request for referral and stated that, “[t]he Court’s December 27, 2012 Order did

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not find or suggest that Plaintiff was lying about Defendants’ production of Plaintiff’s

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medical records.” (Doc. 202 at 1-2).
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The Magistrate Judge denied

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Again, this Court agrees that nothing in the Magistrate Judge’s December 27, 2012

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Order suggested that Plaintiff was lying in his sworn statement. Plaintiff’s inference that the

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December 27, 2012 Order was premised on any such finding is wholly unsupported.

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Accordingly, the Magistrate Judge did not err in denying Plaintiff’s Motion for

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Reconsideration of the December 27, 2012 Ruling (Doc. 191). Moreover, the Magistrate

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Judge did not err in denying Plaintiff’s Request to Report Criminal Misconduct to the United

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States Attorneys’ Office (Doc. 199). For the foregoing reasons, the Magistrate Judge’s

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January 25, 2013 Order (Doc. 202) is affirmed.

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C.

The February 5, 2013 Order (Doc. 209)

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Plaintiff objects to the Magistrate Judge’s February 5, 2013 Order. Plaintiff asserts

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that he is not objecting to “the decision itself,” but argues that, in her February 5, 2013 Order,

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the Magistrate Judge “falsified” the record and directed “unjustifiable criticisms” toward

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him. Plaintiffs requests that the record be corrected and the Magistrate Judge be required to

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apologize to “the Court and to the Plaintiff.” (Doc. 215 at 3).

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In her February 5, 2013 Order, the Magistrate Judge granted Plaintiff’s “Motion for

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Enlargement of Time to File Responses to Defendants’ Non-Enumerated Motion to Dismiss

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and Motion for Summary Judgment.” In examining whether Plaintiff had shown good cause

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to obtain a second extension of time for Plaintiff to respond to Defendants’ dispositive

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motions, the Magistrate Judge analyzed Plaintiff’s stated reasons for seeking an extension

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of time. The Magistrate Judge found that:

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Plaintiff’s assertion that migraine headaches impeded his ability
to prepare legal filings between January 23 and 26, 2013 is not
fully supported by the record. Plaintiff’s “Seventh Supplement
to Modified/Censored Motion for Issuance of Order to Enjoin
Defendants from Interfering with Plaintiff’s Prosecution of
Cause” and “Motion for Enlargement of Time to File Replies to
Defendant Ryan’s Responses to Plaintiff’s Motions to Compel
and to Defendant Barcklay’s Response to Plaintiff’s Motions to
Compel” are both dated January 26, 2013. (Docs. 205 and 206.)
Plaintiff does not explain why he was able to prepare those
filings, but could not work on his responses to the dispositive
motions.

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Moreover, since the entry of the Court’s December 27, 2012
Order extending the response deadlines to January 31, 2013,
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Plaintiff has filed five motions (Doc. 192, 193, 201,204, 208)
and four “supplements” to previously filed motions. (Doc. 194,
195, 203, 205). Again, Plaintiff does not explain why he was
able to prepare and file those motions and supplements but was
unable to prepare and file his responses to Defendants’ Motion
to Dismiss (Doc. 165) and Motion for Summary Judgment (Doc.
166.)

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(Doc. 209 at 2-3). Plaintiff argues that this language portrays Plaintiff as a liar and attacks

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his credibility.

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Contrary to Plaintiff’s contentions, the Magistrate Judge’s Order simply sets forth the

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facts as they existed in the Record. Plaintiff had the burden of demonstrating good cause

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when seeking the requested extensions of time, see Fed. R. Civ. P. 6(b), and the Magistrate

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Judge’s Order simply explains the reason Plaintiff failed to show such good cause. Despite

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Plaintiff’s failure to provide good cause for his requests, the Magistrate Judge nonetheless

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exercised her inherent authority to manage her cases and granted Plaintiff the extensions he

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requested. There is nothing in the Record to support Plaintiff’s contentions that the

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Magistrate Judge “falsified” the record and directed “unjustifiable criticisms” toward him.

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Accordingly, the Magistrate Judge’s February 5, 2013 Order (Doc. 209) is affirmed.

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D.

The April 30, 2013 Order (Doc. 235)

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Plaintiff objects to the Magistrate Judge’s April 30, 2013 Order. Plaintiff asserts that

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the April 30, 2013 is “colored” by the Magistrate Judge’s alleged “favoritism towards

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Defendants” and that “some issues were unfairly decided, while others were completely

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ignored.” (Doc. 245 at 2). Plaintiff does not specifically identify which issues in the April

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30 Order he believes were unfairly decided or completely ignored. Rather, Plaintiff argues

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that he is being denied a “meaningful opportunity” to exercise his right to objection because

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Plaintiff does not have access to any of the ten federal
court decisions to which Magistrate Judge Bade cited in her
decision, to annotated versions of the Federal Rules of Evidence
or the Federal Rules of Civil Procedure, or to any texts,
hornbooks, or scholarly works which treat upon the law of
evidence and/or discovery practices and procedures.

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(Doc. 245 at 2). Plaintiff argues that, as a result of his inability to access these legal
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materials, he is unable to articulate his prospective claims of error.
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As a result, Plaintiff

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requests a de novo review of his Motion to Compel Defendant Ryan to Give Proper

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Responses to Plaintiff’s Interrogatories , and Plaintiffs’ Motion to Compel Defendant Ryan’s

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Compliance with Plaintiff’s Second Set of Requests for Production of Documents and

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Tangible Things.

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Plaintiff’s only stated objection to the Magistrate Judge’s April 30 Order is that he has

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been unable to access the rules and cases cited by the Magistrate Judge. In her April 30

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Order, the Magistrate Judge cited to the Federal Rules of Civil Procedure, the Federal Rules

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of Evidence, this Court’s Local Rules of Civil Procedure, and case law. Each time the

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Magistrate Judge cited to any of the rules or cited to a case, the Magistrate Judge explained

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what the rule/case said, why she was citing to the rule/case, and/or included a parenthetical

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explaining the relevance of the particular citation. Plaintiff has failed to explain how the

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Magistrate Judge’s use of citations has deprived him the opportunity to meaningfully object

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to her rulings. The Magistrate Judge carefully explained her reliance on the rules and cases

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to which she cited. There is nothing apparent in the Magistrate Judge’s use and explanation

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of those citations that deprives Plaintiff of the right to meaningfully object to the Magistrate

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Judge’s rulings. Accordingly, Plaintiff’s objections to the Magistrate Judge’s April 30, 2013

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Order are overruled and the April 30, 2013 Order is affirmed.

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III.

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Plaintiff argues that Magistrate Judge Bade should be recused “[i]n the event she is

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going to be a witness against Plaintiff in a criminal prosecution for perjury.” (Doc. 214 at

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7). This request is based on Plaintiff’s unsupported inference that the Magistrate Judge

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“must have believed he was lying” and such belief was the basis for her December 27, 2012

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Order. As discussed more fully above, Plaintiff’s argument that the Magistrate Judge has

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suggested that Plaintiff has perjured himself is without merit.

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THE MOTION TO RECUSE

Plaintiff next argues that
in the event that Magistrate Judge Bade has no evidence that the
Plaintiff gave false evidence in these proceedings, then her
Order of December 27, 2012 reduced down to an arbitrary and
capricious disregard of the truth of the matter which had been
put before her–an act which Plaintiff submits was an egregious
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display of the bias and prejudice she harbors against him and is
otherwise attributable to her favoritism toward the Defendants.

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(Doc. 214 at 7-8). Plaintiff further argues that the Magistrate Judge’s “unjustified
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criticisms” and falsification of the record in her February 5, 2013 Order demonstrate her bias
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against him.
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As discussed more fully above, Plaintiff’s conclusions that the Magistrate Judge
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“believes” he was lying, has falsified the Record, and has unjustifiably criticized Plaintiff are
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without merit. The moving party bears the burden of proving facts sufficient to justify
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recusal. And, the mere filing of an affidavit of disqualification pursuant to 28 U.S.C. § 144,
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even though such an affidavit was not filed here, does not amount to sufficient proof. 28
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U.S.C. § 144 “must be given the utmost strict construction to safeguard the judiciary from
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frivolous attacks upon its integrity and to prevent abuse and insure the orderly functioning
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of the judicial system.” Rademacher v. City of Phoenix, 442 F. Supp. 27, 29 (D. Ariz. 1977)
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(citations omitted). Allegations that are merely conclusory are not legally sufficient. United
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States v. $292,888.04 U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995); United States v.
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Vespe, 868 F.2d 1328, 1340 (3d. Cir. 1989).
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In this case, Plaintiff’s basis for recusal of the Magistrate Judge is based on
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unsupported conclusions that Plaintiff has drawn from the Magistrate Judge’s Orders. This
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is not an appropriate basis for recusal. There is no showing or even suggestion that an
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objectively reasonable basis exists for the Magistrate Judge’s recusal.

Accordingly,

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Plaintiff’s Motion to Recuse the Magistrate Judge is denied.
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IV.

CONCLUSION

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Based on the foregoing,
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IT IS ORDERED that Plaintiff’s Motion to Recuse Magistrate Judge and Objections
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to the Magistrate Judge’s Orders of December 27, 2012 and January 25, 2013 (Doc. 213 and
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214) is denied and the objections are overruled.
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IT IS FURTHER ORDERED that Plaintiff’s Supplement to his Motion to Recuse
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and Objections to the Magistrate Judge’s Order of February 5, 2013 (Doc. 215) is denied and
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the objections are overruled.
IT IS FURTHER ORDERED that Plaintiff’s Objections to Magistrate Judge’s Order
of April 30, 2013 (Doc. 245 and Doc. 246) are overruled.

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The Magistrate Judge’s Orders of December 27, 2012 (Doc. 191), February 5, 2013

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(Doc. 209), and January 25, 2013 Order (Doc. 202), and April 30, 2013 Order (Doc. 235) are

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affirmed.

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DATED this 9th day of July, 2013.

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