Williams v. Rodriguez et al

Filing 65

ORDER DENYING 63 Motion for Disqualification of Magistrate Judge; ORDER DENYING 63 Request for Reconsideration of Magistrate Judge's Order; and ORDER GRANTING Ten-Day Extension of Time to Submit Service Documents, as Instructed by this Order, signed by District Judge Lawrence J. O'Neill on 1/4/2013. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LONNIE CLARK WILLIAMS, JR.,

1:09-cv-01882-LJO-GSA-PC

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ORDER DENYING MOTION FOR
DISQUALIFICATION OF MAGISTRATE
JUDGE

Plaintiff,
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v.
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ORDER DENYING REQUEST FOR
RECONSIDERATION OF MAGISTRATE
JUDGE'S ORDER

P. RODRIGUEZ, et al.,

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ORDER GRANTING TEN-DAY EXTENSION
OF TIME TO SUBMIT SERVICE
DOCUMENTS, AS INSTRUCTED BY
THIS ORDER

Defendants.
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(Doc. 63.)
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/
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I.

BACKGROUND

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Lonnie Clark Williams, Jr. (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. On November 26, 2012,

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Plaintiff filed a motion for the District Court Judge to disqualify Magistrate Judge Gary S. Austin

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from proceeding with this action, to reconsider the Magistrate Judge's order denying Plaintiff’s

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motion for change of venue, and to grant Plaintiff an extension of time to return service documents

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to the Court. (Doc. 63.)

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II.

MOTION FOR DISQUALIFICATION OF MAGISTRATE JUDGE

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Under 28 U.S.C. § 144, “[W]henever a party to any proceeding in a district court makes and

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files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal

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bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no

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further therein, but another judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144; see

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Pesness v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). Under 28 U.S.C. § 455(a), “[a]ny ...

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judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be

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questioned.” Pesness at 1043. Under both recusal statutes, the substantive standard is “‘[W]hether

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a reasonable person with knowledge of all the facts would conclude that the judge's impartiality

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might reasonably be questioned.’” Id. (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th

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Cir.1997)). However, the bias must arise from an extra-judicial source and cannot be based solely

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on information gained in the course of the proceedings. Hasbrouck v. Texaco, Inc., 842 F.2d 1034,

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1045-46 (9th Cir. 1988) (citing 28 U.S.C. §§ 455(a), 455(b)(1)), aff'd, 496 U.S. 543, 110 S.Ct. 2535,

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110 L.Ed.2d 492 (1990).; In re Corey, 892 F.2d 829, 839 (9th Cir. 1989). A judge’s rulings while

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presiding over a case do not constitute extra-judicial conduct. Nilsson, et al., v. Louisiana Hydrolec,

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854 F.2d 1538, 1548 (9th Cir. 1988). “‘Judicial rulings alone almost never constitute a valid basis

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for a bias or partiality motion.’” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir.2004) (quoting

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Liteky v. United States, 510 U.S. 540, 555 (1994)). “‘In and of themselves .., they cannot possibly

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show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the

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degree of favoritism or antagonism required ... when no extrajudicial source is involved.’” Id.

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Plaintiff objects to the assignment of Magistrate Judge Gary S. Austin to this action, on the

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grounds that the Magistrate Judge is biased and prejudiced against Plaintiff, and because the

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Magistrate Judge is a defendant named in the Fourth Amended Complaint. Plaintiff claims that the

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Magistrate Judge refuses to allow the District Judge to rule on Plaintiff’s motions, in order to prevent

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Plaintiff from appealing the rulings to the Ninth Circuit. Plaintiff also claims that the Magistrate

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Judge seeks to conspire with other Magistrate Judges to make unconstitutional rulings against

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Plaintiff. Plaintiff objects to the Magistrate Judge presiding over the pretrial matters in this case.

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Plaintiff’s motion for disqualification must be denied. The Magistrate Judge has the

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authority to rule on pretrial matters pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff

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has not supported his motion with any evidence that the Magistrate Judge has a personal bias against

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Plaintiff from an extra-judicial source. As discussed above, a judge’s rulings while presiding over

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a case do not constitute extra-judicial conduct. See Nilsson, 854 F.2d at 1548. Plaintiff has not

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provided any evidence of a conspiracy, and Plaintiff’s disagreement with the Court’s rulings is not

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a legitimate ground for seeking disqualification.

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Plaintiff’s argument that the Magistrate Judge should be disqualified because he is a

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defendant in this action is without merit. On September 11, 2012, the undersigned issued an order

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dismissing the Magistrate Judge as defendant from this action, based on Plaintiff’s failure to state

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any claims against him upon which relief may be granted under § 1983.

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Based on this analysis, Plaintiff’s motion for disqualification of Magistrate Judge Gary S.

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Austin shall be denied.

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III.

MOTION FOR RECONSIDERATION

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Local Rule 303 provides that "[a] party seeking reconsideration of the Magistrate Judge's

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ruling shall file a request for reconsideration by a Judge ... specifically designat[ing] the ruling, or

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party thereof, objected to and the basis for that objection. This request shall be captioned 'Request

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for Reconsideration by the District Court of Magistrate Judge's Ruling.'" Local Rule 303(c). "The

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standard that the assigned Judge shall use in all such requests is the 'clearly erroneous or contrary to

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law' standard set forth in 28 U.S.C. § 636(b)(1)(A)." Local Rule 303(f).

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Plaintiff requests reconsideration of the Magistrate Judge's ruling on Plaintiff's motion for

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change of venue. Plaintiff seeks a change of venue, from the Fresno Division of the Eastern District

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of California to the Sacramento Division of the Eastern District of California, based on Plaintiff's

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health. Plaintiff asserts that he is HIV-positive, and it would be dangerous for him to be exposed to

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the illness known as Valley Fever. For this reason, Plaintiff argues that he is restricted from

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attending court in Fresno and Kings Counties, where Valley Fever is present. Plaintiff claims that

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Magistrate Judge Austin improperly ruled on his motion for change of venue.

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The Court has reviewed Plaintiff's motion for change of venue, filed on August 20, 2012, and

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the Magistrate Judge's order of September 12, 2012 denying the motion. (Docs. 49, 52.) The Court

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has also reviewed Plaintiff's prior motion for reconsideration filed on September 24, 2012, and the

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Magistrate Judge's order of September 26, 2012 denying the motion. (Docs. 53, 57.) The Court

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finds no evidence that the Magistrate Judge's rulings were clearly erroneous or contrary to law. The

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Court also finds that Plaintiff's present motion for reconsideration makes no new arguments that

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were not properly addressed and resolved by the Magistrate Judge in the orders of September 12,

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2012 and September 26, 2012. Therefore, Plaintiff's present motion for reconsideration shall be

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denied.

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IV.

MOTION FOR EXTENSION OF TIME

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Plaintiff requests a thirty-day extension of time to complete and submit service documents

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to the Court, pursuant to the Court's order of September 12, 2012. Plaintiff claims that he has been

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unable to submit the documents because prison personnel refuse to make copies of the Fourth

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Amended Complaint which Plaintiff is required to provide to the Court.

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The Court's order of September 12, 2012 requires Plaintiff to submit three copies of the

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Fourth Amended Complaint, together with other documents, to enable service of process. (Doc. 51

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at 2 ¶¶2-3.) Plaintiff shall be granted ten days in which to submit the service documents to the Court.

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If Plaintiff is unable to obtain photocopies of the Fourth Amended Complaint, he is required to

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submit, together with the service documents, his declaration signed under penalty of perjury

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declaring that he requested and was denied photocopies of the Fourth Amended Complaint. In the

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declaration, Plaintiff must state the date of the request, the nature of the request, the name or title of

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the person who refused to make the copies, and the reason given for the refusal. Plaintiff must also

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submit any documentation available as evidence that he submitted a request and was refused copies.

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V.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that:

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1.

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Plaintiff’s motion for disqualification of Magistrate Judge Gary S. Austin in this
action is DENIED;

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2.

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Plaintiff's motion for reconsideration, by the District Court Judge, of the Magistrate
Judge's order denying Plaintiff's motion for change of venue is DENIED;

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Plaintiff is granted ten days from the date of service of this order in which to submit

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service documents, pursuant to the Court's order of September 12, 2012, as instructed

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by this order; and

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Plaintiff's failure to comply with this order shall result in the dismissal of this action.

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IT IS SO ORDERED.

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Dated:

January 4, 2013

/s/ Lawrence J. O'Neill
B9ed48
UNITED STATES DISTRICT JUDGE

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