Henry v. Universal Technical Institute et al

Filing 135

ORDER DENYING plaintiff's motion for recusal (doc. 130 ) and plaintiff's motion for summary judgment (doc. 119 ). IT IS FURTHER ORDERED GRANTING defendant's motion for summary judgment (doc. 122 ) and DENYING defendant's motion to dismiss as moot (doc. 129 ).The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 1/9/2013.(KMG)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Tami E. Henry, Plaintiff, 10 11 vs. 12 Universal Technical Institute, 13 Defendant. 14 ) ) ) ) ) ) ) ) ) ) ) ) No. CV 11-01773-PHX-FJM ORDER 15 16 The court has before it plaintiff's motion for summary judgment (doc. 119), 17 defendant's response (doc. 125), defendant's motion for summary judgment (doc. 122), 18 defendant's motion to dismiss (doc. 129), plaintiff's response to the motion to dismiss (doc. 19 131), defendant's reply (doc. 134), plaintiff's motion for recusal (doc. 130), and defendant's 20 response (doc. 133). Plaintiff has failed to file both a reply in support of his motion for 21 summary judgment and a response to defendant's motion for summary judgment. The time 22 for doing so has expired. 23 We first address the motion for recusal (doc. 130). Relying on 28 U.S.C. § 455(a), 24 plaintiff argues that the undersigned should disqualify himself because his comments and 25 orders "demonstrate bias and prejudice towards the Plaintiff." We disagree. Mere 26 conclusory allegations do not provide a basis for recusal. U.S. v. $292,888.04 in U.S. 27 Currency, 54 F.3d 564, 566 (9th Cir. 1995). The relevant inquiry under § 455(a) is whether 28 1 the alleged comments "display a deep-seated favoritism or antagonism that would make fair 2 judgment impossible." Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 3 (1994). This court has strongly urged plaintiff to seek legal advice from an attorney on 4 several occasions. However, "judge's ordinary efforts at courtroom administration" do not 5 establish bias or partiality. Id. at 556, 114 S.Ct. at 1157. Plaintiff's argument that the court's 6 admonishments create the appearance of bias is untenable. The motion for recusal is denied 7 (doc. 130). 8 In his complaint, plaintiff alleges that Universal Technical Institute ("UTI") 9 instructors and administrators discriminated against him on the basis of race and national 10 origin. On March 9, 2012, we dismissed all of plaintiffs claims except plaintiff's Title VI 11 claim alleging that UTI engaged in race discrimination by not allowing plaintiff to take or 12 retake the induction systems test given in one of his classes (doc. 68). A party seeking 13 summary judgment bears the burden of informing this court of the basis for its motion, and 14 identifying those portions of “the pleadings, depositions, answers to interrogatories, and 15 admissions on file, together with the affidavits, if any,” which it believes demonstrate the 16 absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 17 S. Ct. 2548, 2553 (1986). Plaintiff's conclusory allegation that the case is "open and shut" 18 is insufficient, and his reference to the Department of Education Office of Civil Rights report 19 does not demonstrate that UTI discriminated against him. Moreover, plaintiff's motion for 20 summary judgment does not comply with LRCiv 56.1. He failed to submit a separate 21 statement of facts and to include citations to specific admissible parts of the record. This 22 procedural non-compliance provides an independent ground for denial of plaintiff's motion 23 for summary judgment. See LRCiv 56.1(a) (“A failure to submit a separate statement of 24 facts . . . may constitute grounds for the denial of the motion.”). 25 26 27 28 In its motion for summary judgment, defendant claims that plaintiff cannot succeed on his Title VI claim because he has failed to demonstrate that he was treated differently than any similarly situated students. A party opposing a motion for summary judgment must file 1 a separate controverting statement of facts to show that a genuine issue of material fact 2 exists. Fed. R. Civ. P. 56(c); LRCiv 56.1(b). Because plaintiff failed to do so, we may grant 3 defendant's motion for summary judgment. Fed. R. Civ. P. 56(e)(3). Moreover, under 4 LRCiv 7.2(i), "if the opposing party does not serve and file the required answering 5 memoranda . . . , such non-compliance may be deemed a consent to the denial or granting of 6 the motion and the Court may dispose of the motion summarily." Plaintiff did not respond 7 to the motion for summary judgment, and the time for filing has long since passed. 8 Accordingly, we grant defendant's motion for summary judgment. 9 10 11 12 13 IT IS ORDERED DENYING plaintiff's motion for recusal (doc. 130) and plaintiff's motion for summary judgment (doc. 119). IT IS FURTHER ORDERED GRANTING defendant's motion for summary judgment (doc. 122) and DENYING defendant's motion to dismiss as moot (doc. 129). The clerk shall enter final judgment. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED this 9th day of January, 2013.

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