Danny James Cohea v. Grannis et al
Filing
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ORDER Denying 29 Plaintiff's Motion for Recusal and Motion to Stay; ORDER Denying 8 Plaintiff's Motion for Temporary Restraining Order; ORDER Denying Plaintiff's Motion for Clarification and for Review of the Magistrate Judge's Denial of his Motion for Reconsideration, signed by District Judge Lawrence J. O'Neill on 4/14/15. Amended Complaint Due Within Thirty Days. (Attachments: # 1 Amended Complaint Form)(Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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DANNY JAMES COHEA,
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Plaintiff,
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v.
NANCY GRANNIS, et al.,
CASE NO. 1:12-cv-01739-LJO-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR RECUSAL AND MOTION TO STAY
(ECF No. 29)
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ORDER DENYING PLAINTIFF’S MOTION
FOR
TEMPORARY
RESTRAINING
ORDER
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(ECF No. 8)
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ORDER DENYING PLAINTIFF’S MOTION
FOR CLARIFICATION AND FOR REVIEW
OF THE MAGISTRATE JUDGE’S DENIAL
OF
HIS
MOTION
FOR
RECONSIDERATION
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Defendants.
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(ECF No. 12)
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I.
PROCEDURAL HISTORY
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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil
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rights action filed pursuant to 42 U.S.C. § 1983. On December 27, 2012, Plaintiff’s
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Complaint was dismissed for failure to state a claim, but he was given leave to amend.
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(ECF No. 9.) Plaintiff’s motion for reconsideration of that order (ECF No. 10) was denied
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by the Magistrate Judge. (ECF No. 11.) Plaintiff then sought reconsideration by a
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District Judge. (ECF No. 12.)
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Before the undersigned ruled on Plaintiff’s motion for reconsideration, Plaintiff’s in
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forma pauperis status was revoked (ECF No. 13), and the case was dismissed for failure
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to obey the Court’s order that he pay the applicable filing fee. (ECF No. 15, 17.) As the
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action was closed at that time, Plaintiff’s motion for a temporary restraining order and
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motion for clarification and review of the Magistrate Judge’s order on his motion for
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reconsideration were terminated. (ECF Nos. 8 & 12.)
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Plaintiff appealed the revocation of his in forma pauperis status (ECF No. 19), and
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the United States Court of Appeals for the Ninth Circuit determined that Plaintiff’s in
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forma pauperis status was improperly revoked.
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Magistrate Judge reinstated Plaintiff’s in forma pauperis status and ordered Plaintiff to
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file an amended pleading within thirty days. (ECF No. 28.)
(ECF No. 26.)
On remand, the
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Before the Court is Plaintiff’s motion to recuse the undersigned and the Magistrate
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Judge and to stay proceedings pending resolution of the recusal motion. (ECF No. 29.)
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Now that the case has been reinstated, the Court will also address Plaintiff’s motion for a
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temporary restraining order (ECF No. 8.) and his motion for clarification and
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reconsideration (ECF No. 12.).
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II.
MOTION FOR RECUSAL
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A.
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“Whenever a party to any proceeding in a district court makes and files a timely
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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
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proceed no further therein, but another judge shall be assigned to hear such
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proceeding.” 28 U.S.C. § 144; see Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir.
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2008). Section 144 expressly conditions relief upon the filing of a timely and legally
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sufficient affidavit. United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978).
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Legal Standard
A judge must disqualify himself if “his impartiality might be reasonably
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questioned,” 28 U.S.C. § 455(a), or if “he has a personal bias or prejudice concerning a
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party, or personal knowledge of disputed evidentiary facts concerning the proceeding,”
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28 U.S.C. § 455(b)(1). However, the bias must arise “from an extrajudicial source” and
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cannot be based solely on information gained in the course of the proceedings. Pesnell,
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543 F.3d at 1043-44 (citing Liteky v. United States, 510 U.S. 540, 554-56 (1994)).
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“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality
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motion.” Id. at 1044 (quoting Liteky, 510 U.S. at 555). “In and of themselves . . . they
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cannot possibly show reliance upon an extrajudicial source; and can only in the rarest
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circumstances evidence the degree of favoritism or antagonism required . . . when no
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extrajudicial source is involved.” Focus Media, Inc. v. NBC, 378 F.3d 916, 930 (9th Cir.
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2004). Judicial bias or prejudice formed during current or prior proceedings is sufficient
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for recusal only when the judge's actions “display a deep-seated favoritism or
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antagonism that would make fair judgment impossible.” Liteky, 510 U.S. at 555; Pesnell,
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543 F.3d at 1044. “‘[E]xpressions of impatience, dissatisfaction, annoyance, and even
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anger’ are not grounds for establishing bias or impartiality, nor are a judge's efforts at
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courtroom administration.” Pesnell, 543 F.3d at 1044 (quoting Liteky, 510 U.S. at 555–
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56).
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The objective test for determining whether recusal is required is whether a
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reasonable person with knowledge of all the facts would conclude that the judge’s
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impartiality might reasonably be questioned. United States v. Johnson, 610 F.3d 1138,
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1147 (quotation marks and citation omitted). “Adverse findings do not equate to bias.”
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Id. at 1148.
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B.
Analysis
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Plaintiff appears to argue that the Magistrate Judge and the undersigned should
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recuse themselves because the Magistrate Judge has misconstrued the Ninth Circuit’s
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disposition of his appeal by requiring him to file an amended pleading. Plaintiff contends
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that the Ninth Circuit would not have remanded the case if Plaintiff had not stated a
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claim for relief in his original complaint, or alternatively, the Ninth Circuit would have
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advised him of the need to file an amended complaint. Plaintiff also contends that the
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Magistrate Judge’s denial of his motion for reconsideration of the order dismissing his
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complaint and granting him leave to amend (ECF No. 11.) was antagonistic, erroneous,
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and biased. Plaintiff believes recusal is further warranted because his motion for a
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temporary restraining order and motion for clarification of the Magistrate Judge’s order
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denying his motion for reconsideration and requesting an Article III Judge’s review have
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yet to be ruled upon. Finally, Plaintiff contends that the Magistrate Judge was biased
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when he failed to reinstate another case Plaintiff filed, Cohea v. Carron, Case No. 13-cv-
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01061-LJO-MJS, based on the Ninth Circuit’s ruling in this case.
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Plaintiff fails to present a sufficient basis for warranting recusal. The Ninth Circuit
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did not rule on the sufficiency of Plaintiff’s complaint nor did it require this Court to
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reinstate any other cases that Plaintiff may have filed. The only issue before the Ninth
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Circuit was whether this Court properly revoked his in forma pauperis status. Therefore,
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on remand, the Magistrate Judge properly reinstated Plaintiff’s in forma pauperis status
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and required him to file an amended complaint in accordance with the Court’s prior
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screening order.
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Plaintiff’s disagreement with the Magistrate Judge’s prior orders is also not a
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basis for recusal. See Johnson, 610 F.3d at 1148. There is a “presumption of honesty
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and integrity in those serving as adjudicators.” Caperton v. A.T. Massey Coal Co., Inc.,
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556 U.S. 868, 891 (2009), citing Withrow v. Larkin, 421 U.S. 35, 47 (1975). Plaintiff has
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not provided any facts suggesting a deep-seated, or any, favoritism on the part of the
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undersigned or the Magistrate Judge such as to make fair judgment impossible. He also
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has not presented any "extrajudicial source” for the undersigned's or the Magistrate
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Judge’s alleged bias.
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Finally, any delay in ruling on Plaintiff’s motions for a temporary restraining order
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and motion for clarification and reconsideration (ECF Nos. 8 & 12.) does not reflect bias.
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Upon the Court’s revocation of his in forma pauperis status, Plaintiff’s case was closed.
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(ECF Nos. 17 & 18.) Therefore, his motion for a temporary restraining order and motion
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for clarification and review of the Magistrate Judge’s order on his motion for
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reconsideration were terminated. The Court was no longer required to address those
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motions at that time. Plaintiff’s case has now been reinstated, and the Court will address
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Plaintiff’s motions below.
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III.
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MOTION TO STAY
Plaintiff seeks to stay further proceedings in this action pending resolution of his
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motion to recuse. In light of the resolution of that motion herein, Plaintiff’s motion to stay
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is DENIED.
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IV.
MOTION FOR CLARIFICATION AND RECONSIDERATION
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A.
Legal Standard
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Federal Rule of Civil Procedure 60(b)(6) allows the Court to relieve a party from
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an order for any reason that justifies relief. Rule 60(b)(6) “is to be ‘used sparingly as an
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equitable remedy to prevent manifest injustice and is to be utilized only where
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extraordinary circumstances’” exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008)
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(quoting Latshaw v. Trainer Wortham & Co., Inc., 452 F.3d 1097, 1103 (9th Cir. 2006)).
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The moving party “must demonstrate both injury and circumstances beyond his control.”
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Latshaw, 452 F.3d at 1103. In seeking reconsideration of an order, Local Rule
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230(j) requires a party to show “what new or different facts or circumstances are claimed
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to exist which did not exist or were not shown upon such prior motion, or what other
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grounds exist for the motion.”
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“A motion for reconsideration should not be granted, absent highly unusual
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circumstances, unless the . . . court is presented with newly discovered evidence,
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committed clear error, or if there is an intervening change in the controlling law,” Marlyn
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Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009),
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and “‘[a] party seeking reconsideration must show more than a disagreement with the
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Court’s decision, and ‘recapitulation . . .’” of that which was already considered by the
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court in rendering its decision. U.S. v. Westlands Water Dist., 134 F.Supp.2d 1111,
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1131 (E.D. Cal. 2001) (quoting Bermingham v. Sony Corp. of Am., Inc., 820 F. Supp.
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834, 856 (D. N.J. 1992)).
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B.
Analysis
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Plaintiff contends that the Magistrate Judge improperly denied his motion for
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reconsideration (ECF No. 10.) because he addressed the motion to the District Court
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rather than the Magistrate Judge. Plaintiff seeks to have his motion for reconsideration
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reviewed by the undersigned.
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Plaintiff disagrees with the adequacy of the Magistrate Judge’s screening order
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and contends that he stated valid claims for relief. Plaintiff’s disagreement with the
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screening order and dismissal of his complaint with leave to amend is not a basis for
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reconsideration. Plaintiff has not presented any new or different facts or circumstances
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which would warrant reconsideration. The Magistrate Judge properly screened Plaintiff’s
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complaint and informed him of the standards he would need to comply with in filing an
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amended pleading in compliance with the requirements of Fed. R. Civ. Pro. 8.
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Accordingly, Plaintiff’s motion for clarification and reconsideration (ECF No. 12.) is
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DENIED.
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V.
MOTION FOR TEMPORARY RESTRAINING ORDER
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Plaintiff seeks an injunction for access to courts. (ECF No. 8.) Injunctive relief,
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whether temporary or permanent, is an “extraordinary remedy, never awarded as of
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right.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). “A plaintiff seeking a
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preliminary injunction must establish that he is likely to succeed on the merits, that he is
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likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
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equities tips in his favor, and that an injunction is in the public interest.” Am. Trucking
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Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009) (quoting Winter,
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555 U.S. at 20).
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Based on the Court’s ruling above denying his motion for reconsideration, Plaintiff
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has failed to show that he is likely to succeed on the merits or that the balance of
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equities tips in his favor since he has failed to state a claim. Therefore, his motion for a
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temporary restraining order (ECF No. 8.) is DENIED.
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VI.
CONCLUSION AND ORDER
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Based on the foregoing, it is HEREBY ORDERED that:
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Plaintiff’s motion for recusal and a stay (ECF No. 29.) is DENIED;
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Plaintiff’s motion for clarification and reconsideration (ECF No. 12.) is
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DENIED;
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3.
Plaintiff’s motion for a temporary restraining order (ECF No. 8.) is DENIED;
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4.
Plaintiff shall file an amended complaint within thirty (30) days from service
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of this order; and
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If Plaintiff fails to file an amended complaint in compliance with this order,
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the Court will dismiss this action, with prejudice, for failure to state a claim,
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failure to comply with a court order, and failure to prosecute, subject to the
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“three strikes” provision set forth in 28 U.S.C. § 1915(g).
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Vittorio, 658 F.3d 1090, 1098 (9th Cir. 2011).
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IT IS SO ORDERED
Dated: April 14, 2015
/s/ Lawrence J. O’Neill
United States District Judge
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Silva v. Di
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