Bank of New York Mellon v. Ribadeneira et al

Filing 13

ORDER the Clerk of Court must modify Stoller's address in accordance with the address stated in his motion for extension of time 10 . Stoller's motion to disqualify is denied 7 . Stoller's Application to Proceed In Forma Pauperis is denied 2 . Within 30 days of the date this Order is filed, Stoller must either pay the $350.00 filing fee or file a completed Application to Proceed In Forma Pauperis and a certified six-month trust account statement. If Stoller fails to comply , the Clerk of Court must remand this action to state court. The Clerk of Court must mail Stoller a court-approved form for filing an Application to Proceed In Forma Pauperis (Non-Habeas). Stoller's motion for extension of time is granted and granting 30 days from the filing date of this Order to respond to Plaintiff's motion to remand and to enjoin 10 . Signed by Judge G Murray Snow on 10/28/11.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bank of New York Mellon,
Plaintiff,

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vs.

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Rae Ribadeneira, et al.,

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Defendants.

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No. CV 11-1765-PHX-GMS (JRI)
ORDER

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Plaintiff Bank of New York Mellon commenced this action for forcible detainer in

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Maricopa County Superior Court on July 30, 2010 against Defendants Rae Ribadeneira and

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Doe occupants I through X, case# CV2010-94820.1 On September 7, 2011, Christopher

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Stoller (Stoller), who was then an inmate in the Lake County Jail in Waukegan, Illinois,

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removed this case from Arizona state courts for the third time and filed an application to

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proceed in forma pauperis on this District’s court-approved form for use by incarcerated

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persons. (Doc. 1, 2.) Plaintiff has filed a motion to remand the case to state court and seeks

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an injunction to prevent Stoller from again removing the case. (Doc. 9.) Stoller has filed a

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motion for an extension of time within which to respond to the motion for remand. (Doc.

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The address of the real property at issue is 10632 East Blue Sky Road, Scottsdale,
Arizona 85262 (the Property).

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10.) In the motion for extension of time, Stoller states that he has been transferred to the

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Dixon Correctional Center in Dixon, Illinois. (Id.) Stoller has also filed a motion to

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disqualify the undersigned, which the Court construes as a motion for recusal. (Doc. 7.)

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The Court will deny Stoller’s motion for disqualification. The Court will also deny

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Stoller’s in forma pauperis application as incomplete with leave to file a new Application to

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Proceed In Forma Pauperis using the court-approved form and including a six-month inmate

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account statement. The Court will grant Stoller’s motion for an extension of time to respond

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to the motion for remand and to enjoin Stoller from again removing this case from state court

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to the extent that Stoller will be granted 30 days from the filing date of this Order.

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I.

Motion for Disqualification

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As noted above, Stoller has filed a motion for disqualification or recusal pursuant to

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28 U.S.C. §§ 144 and 455. 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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Stoller seeks disqualification based on the Court’s rulings in this, and other, cases.
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As discussed above, that is not a basis upon which the Court’s impartiality might reasonably

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be questioned for purposes of § 455(a). The Court has no personal bias or prejudice against

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either Stoller or parties to this action, nor does the Court have personal knowledge of any

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disputed evidentiary facts concerning this proceeding. The Court therefore finds that recusal

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is not warranted pursuant to § 455.

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Stoller also appears to seek disqualification of the Court under 28 U.S.C. § 144.
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, Stoller has not filed a “timely and sufficient affidavit.” Instead, Stoller

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makes conclusory assertions of a personal bias or prejudice based on the Court’s rulings in

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two previous cases with which Stoller disagreed, i.e., the failure to file a proper in forma

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pauperis application pursuant to the Prisoner Litigation Reform Act in CV11-1105, and the

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lack of subject matter jurisdiction and compliance with removal requirements in CV11-1433.

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Stoller otherwise seeks disqualification based on the failure to reach issues he raised in

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procedurally improper ways and/or absent federal subject matter jurisdiction. Stoller is not

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entitled to rulings on matters not properly before this Court. Because Stoller fails to allege

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or show that disqualification is warranted pursuant to §§ 455 or 144, his motion will be

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denied.

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II.

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Payment of Filing Fee
When bringing an action, a prisoner must either pay the $350.00 filing fee in a lump
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sum or, if granted the privilege of proceeding in forma pauperis, pay the fee incrementally

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as set forth in 28 U.S.C. § 1915(b)(1). An application to proceed in forma pauperis requires

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an affidavit of indigence and a certified copy of the inmate’s trust account statement for the

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six months preceding the filing of the Complaint. 28 U.S.C. § 1915(a)(2). An inmate must

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submit statements from each institution where he was confined during the six-month period.

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Id. To assist prisoners in meeting these requirements, the Court requires use of a form

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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

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initial partial filing fee of 20% of either the average monthly deposits or the average monthly

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balance in Stoller’s account, whichever is greater. 28 U.S.C. § 1915(b)(1). An initial partial

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filing fee will only be collected when funds exist. 28 U.S.C. § 1915(b)(4). The balance of

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the fee will be collected in monthly payments of 20% of the preceding month’s income

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credited to an inmate’s account, each time the amount in the account exceeds $10.00. 28

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U.S.C. § 1915(b)(2).

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III.

Stoller’s Application Fails to Comply With Statute

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Stoller has used the court-approved form and completed the “Consent to Collection

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of Fees from Trust Account” section. However, he has not had the “Certificate of

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Correctional Official as to Status of Applicant’s Trust Account” section completed by a

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correctional officer, nor has he submitted a certified six-month trust account statement. In

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light of these deficiencies, Stoller’s in forma pauperis application will be denied but he will

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be granted leave 30 days in which to either pay the $350.00 filing fee or file a complete

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Application to Proceed In Forma Pauperis using the court-approved form.

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IV.

Motion for Extension of Time

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Stoller has filed a motion for extension of time in which to respond to the Plaintiff’s

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motion to remand. The Court will grant Stoller 30 days from the filing date of this Order.

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V.

Warnings

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A.

Address Changes

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Stoller must file and serve a notice of a change of address in accordance with Rule

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83.3(d) of the Local Rules of Civil Procedure. Stoller must not include a motion for other

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relief with a notice of change of address. Failure to comply may result in dismissal or

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remand of this action.

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B.

Copies

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Stoller must submit an additional copy of every filing for use by the Court. See

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LRCiv 5.4. Failure to comply may result in the filing being stricken without further notice

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to Stoller.

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C.

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If Stoller fails to timely comply with every provision of this Order, including these

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warnings, the Court may dismiss or remand this action without further notice. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for

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failure to comply with any order of the Court).

Possible Dismissal

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IT IS ORDERED:

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(1)

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The Clerk of Court must modify Stoller’s address in accordance with the

address stated in his motion for extension of time, Doc. 10.

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(2)

Stoller’s motion to disqualify is denied. (Doc. 7.)

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(3)

Stoller’s Application to Proceed In Forma Pauperis is denied. (Doc. 2.)

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(4)

Within 30 days of the date this Order is filed, Stoller must either pay the

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$350.00 filing fee or file a completed Application to Proceed In Forma Pauperis and a

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certified six-month trust account statement.

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(5)

If Stoller fails to either pay the $350.00 filing fee or file a completed

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Application to Proceed In Forma Pauperis within 30 days, the Clerk of Court must remand

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this action to state court without further notice to Stoller.

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(6)

The Clerk of the Court must mail Stoller a court-approved form for filing an
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Application to Proceed In Forma Pauperis (Non-Habeas).
(7)

Stoller’s motion for extension of time is granted to the extent that Stoller is

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granted 30 days from the filing date of this Order in which to respond to Plaintiff’s motion

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to remand and to enjoin Stoller from again removing this case, Doc. 9. (Doc. 10.)

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DATED this 28th day of October, 2011.

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