Espinoza v. Ryan et al

Filing 188

ORDER denying 178 Motion for Change of Judge; denying 179 Motion for Reconsideration. Signed by Senior Judge Roslyn O Silver on 11/26/19. (CLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Adrien Joshua Espinoza,
Plaintiff,

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ORDER

v.

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No. CV-17-03983-PHX-ROS (JFM)

Charles L Ryan, et al.,

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Defendants.

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On October 24, 2019, the Court denied Plaintiff’s appeals of numerous decisions by

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the Magistrate Judge. In doing so, the Court noted “Plaintiff has filed repetitive motions

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for reconsideration, baseless appeals of orders issued by the Magistrate Judge, and

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‘objections’ to orders issued by the undersigned.” (Doc. 174 at 3-4). Because those filings

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lacked merit, the Court threatened sanctions if Plaintiff continued to make such filings.

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(Doc. 174). After that Order, Plaintiff filed a motion for reconsideration, arguing it was

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“totally unfair” to threaten sanctions because Plaintiff “does not know which [filings]

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might be vital and meritorious, and which might be perceived as ‘frivolous.’” (Doc. 179).

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Plaintiff also filed a “Motion for Change of Judge” arguing the reference to possible

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sanctions was “uncalled for and an abuse of discretion.” (Doc. 178 at 1). Therefore,

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Plaintiff believes he is entitled to “a change of judge.”

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Dealing first with the motion for reconsideration, Plaintiff has not established any

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basis for relief. All litigants must comply with the same rules and procedures for litigating

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cases. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow

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the same rules of procedure that govern other litigants.”). Thus, Plaintiff—just like every

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other party—is subject to sanctions pursuant to Federal Rule of Civil Procedure 11 should

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the Court conclude his filings were frivolous. See Warren v. Guelker, 29 F.3d 1386, 1390

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(9th Cir. 1994) (noting Rule 11 sanctions can be imposed on pro se plaintiff). Plaintiff is

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also subject to 28 U.S.C. § 1927 should he multiply these proceedings “unreasonably and

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vexatiously.” Wages v. I.R.S., 915 F.2d 1230, 1235-36 (9th Cir. 1990) (holding “[s]ection

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1927 sanctions may be imposed upon a pro se plaintiff”). Because Plaintiff is entitled to

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the same treatment as all other litigants, his motion for reconsideration will be denied.

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As for Plaintiff’s request for a change of judge, Plaintiff has not identified the legal

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basis for his request. Plaintiff appears to believe the Court is biased or prejudiced against

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him. Pursuant to 28 U.S.C. § 455, the Court must recuse “only if the bias or prejudice

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stems from an extrajudicial source and not from conduct or rulings made during the course

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of the proceeding.” Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir.

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1988). The Court’s mention of sanctions stemmed solely from Plaintiff’s behavior during

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his cases. There is no basis for recusal.

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Accordingly,

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IT IS ORDERED the Motion for Change of Judge (Doc. 178) is DENIED.

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IT IS FURTHER ORDERED the Motion for Reconsideration (Doc. 179) is

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DENIED.
Dated this 26th day of November, 2019.

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Honorable Roslyn O. Silver
Senior United States District Judge

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