Hazeltine v. Hicks et al

Filing 103

ORDER DENYING 93 95 Motions to Appoint Counsel and Addressing Plaintiff's Allegations of Judicial Bias signed by Magistrate Judge Gary S. Austin on 5/3/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICK HAZELTINE,

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Plaintiff,

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vs.
FRANCES HICKS, et al.,

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1:14-cv-00056-DAD-GSA-PC
ORDER DENYING MOTIONS FOR
APPOINTMENT OF COUNSEL, AND
ADDRESSING PLAINTIFF’S ALLEGATIONS
OF JUDICIAL BIAS
(ECF Nos. 93, 95.)

Defendants.

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I.

RELEVANT PROCEDURAL HISTORY

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Rick Hazeltine (“Plaintiff”) is a civil detainee proceeding pro se and in forma pauperis

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with this civil rights action filed pursuant to 42 U.S.C. § 1983. This case now proceeds with

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Plaintiff’s First Amended Complaint filed on July 6, 2015, on the following claim: Excessive

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force in violation of the Fourteenth Amendment against defendants Ian Young, Benjamin

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Gamez, Rashaun Casper, Julius Oldan, Porfirio Sanchez Negrete, David Avilia, Rickey Smith,

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and Charles Ho (collectively “Defendants”). (ECF No. 27.)

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This case is scheduled for trial on July 10, 2018, at 8:30 a.m. before the Honorable Dale

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A. Drozd. A telephonic trial confirmation hearing is scheduled for May 14, 2018, at 1:30 p.m.

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before the Honorable Dale A. Drozd.

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On March 12, 2018, and March 29, 2018, Plaintiff filed motions seeking the
appointment of counsel. (ECF Nos. 93, 95.)
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II.

COURT-APPOINTED COUNSEL

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Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the court cannot require an attorney to

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represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court

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for the Southern District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional

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circumstances the court may request the voluntary assistance of counsel pursuant to section

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1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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of the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, Plaintiff argues that he is unable to prepare his case for trial because

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he is being retaliated against at Coalinga State Hospital. Plaintiff asserts that in the past sixty

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day, he has been subjected to disruptive searches of his bed area, leaving Plaintiff’s legal

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material in disorder. Plaintiff asserts that some of his legal materials have come up missing

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during the searches. Plaintiff also asserts that he was recently moved to another unit and has

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been denied access to all of his legal material, which is now in the control of Departmental

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Police Services. Plaintiff argues that it will take months to reorganize his thousands of pages of

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documents to even learn what is missing.

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Plaintiff also argues that judicial bias by Magistrate Judge Gary S. Austin has prevented

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him from fully participating in discovery and preparing his case. Plaintiff complains that

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Magistrate Judge Austin has denied all of Plaintiff’s motions since he was assigned to this case,

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except for a motion for extension of time.

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These reasons do not make Plaintiff’s case exceptional under the law. As stated above,

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the district court must evaluate both the “likelihood of success of the merits” [and] the “ability

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of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues

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involved.” Id. Here, while the court has found that Plaintiff’s “allegations are sufficient to
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state a claim against Defendants Young, Gamez, Casper, Oldan, Negrete, Avilia, Smith and Ho

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under the Fourteenth Amendment,” this finding is not a determination that Plaintiff is likely to

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succeed on the merits, and at this juncture the court does not find a likelihood of success on the

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merits in this case. (ECF No. 28 at 7:6-9.) Plaintiff’s excessive force claims do not appear

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complex, and based on a review of the record in this case Plaintiff can adequately articulate his

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claims. Thus, the court does not find the required exceptional circumstances, and Plaintiff’s

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motions for appointment of counsel shall be denied, without prejudice.

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III.

ATTORNEY’S FEES

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Plaintiff requests that if his motion for appointment of counsel is denied, he be granted

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recovery of attorney’s fees from Defendants for all of the legal work he has done on this case.

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This request must be denied. Under 42 U.S.C. § 1988(b), “In any action or proceeding to

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enforce a provision of section[] 1983 . . . , the court, in its discretion, may allow the prevailing

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party . . . reasonable attorney=s fees . . . .” 42 U.S.C. ' 1988(b). However, Plaintiff is not

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entitled to attorney’s fees because he representing himself in this action. Because Plaintiff is

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not represented by an attorney, he is not entitled to recover attorney’s fees if he prevails.

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Gonzales v. Kangas, 814 F.2d 1411, 1412 (9th Cir. 1987).

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IV.

JUDICIAL BIAS

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Plaintiff claims that Magistrate Judge Gary S. Austin has exhibited judicial bias against

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Plaintiff in ruling on Plaintiff’s motions. Federal law provides that “[a]ny justice, judge, or

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magistrate judge of the United States shall disqualify himself in any proceeding in which his

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impartiality might reasonably be questioned.” 28 U.S.C. § 455(a); see Pesnell v. Arsenault,

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543 F.3d 1038, 1043 (9th Cir. 2008); U.S. v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010). A

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motion under § 455 is addressed to, and must be decided by, the very judge whose impartiality

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is being questioned.” Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). The bias must arise

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from an extra-judicial source and cannot be based solely on information gained in the course of

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the proceedings. Id. (citing Liteky v. United States, 510 U.S. 540, 554-56 (1994). “‘Judicial

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rulings alone almost never constitute a valid basis for a bias or partiality motion.’” In re Focus

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Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004) (quoting Liteky, 510 U.S. at 555). “‘In and of
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themselves . . , they cannot possibly show reliance upon an extrajudicial source; and can only

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in the rarest circumstances evidence the degree of favoritism or antagonism required . . . when

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no extrajudicial source is involved.’” Id.

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Under 28 U.S.C. § 144, the standard of recusal based on judicial bias is “‘whether a

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

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might reasonably be questioned.’” Mayes v. Leipziger, 729 F.2d 607, 607 (9th Cir. 1984)

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(quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983) ); Pesnell, 543 F.3d at 1043

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(quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997).

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adequate grounds for recusal, the prejudice must result from an extrajudicial source, since a

To provide

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judge’s previous adverse ruling alone is not sufficient for recusal. See id.

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expressly conditions relief upon the filing of a timely and legally sufficient affidavit. United

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States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980); (citing inter alia United States v. Azhocar,

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581 F.2d 735, 738-40 (9th Cir. 1978), cert. denied 440 U.S. 907 (1979). Section 144 provides

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that “[t]he affidavit shall state the facts and the reasons for the belief that bias and prejudice

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exists, . . . [and a] party may only file one such affidavit in any case.” Sibla, 624 F.2d at 867.

Section 144

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A judge who finds the affidavit legally sufficient must proceed no further under § 144

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and must assign a different judge to hear the matter. See 28 U.S.C. § 144; Sibla, 624 F.2d at

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867). Nevertheless, where the affidavit is not legally sufficient, the judge at whom the motion is

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directed can determine the matter. See United States v. Scholl, 166 F.3d 964, 977 (9th Cir.

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1999) (citing Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (holding

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that only after determining the legal sufficiency of a § 144 affidavit is a judge obligated to

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reassign decision on merits to another judge)). If the affidavit is legally insufficient, then

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recusal can be denied. See United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566

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(9th Cir. 1995).

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Here, Plaintiff failed to file an affidavit stating the facts and the reasons he finds judicial

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bias. Plaintiff only alleges that Judge Austin has “denied every motion and request plaintiff has

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put before the bench, with the exception of (1) one, which was the only request for an extension

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of time.” (ECF No. 95 at 1:24-28.) While the court must take Plaintiff’s factual allegations as
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true, Berger v. United States, 255 U.S. 22, 33 (1925), conclusory allegations do not justify

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disqualification and are not protected from judicial scrutiny, see $292,888.04 in U.S. Currency,

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54 F.3d at 566 (affidavit inadequate when based on mere conclusory allegations); United States

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v. Goeltz, 513 F.2d 193 (10th Cir. 1975), cert. den., 423 U.S. 830, 96 S.Ct. 51, 46 L.Ed.2d 48

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(1975); Griffith v. Edwards, 493 F.2d 495 (8th Cir. 1974); Hawaii-Pacific Venture Capital

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Corp. v. Rothbard, 437 F.Supp. 230 (D.C.Hawaii 1977). Plaintiff states no allegation of fact

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showing that any of the undersigned’s decisions stem from any extrajudicial source.

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Plaintiff’s disagreement with the court’s rulings is not a legitimate ground for alleging

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bias. These rulings are ordinary applications of the law. Plaintiff’s allegations fall well short

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of establishing any basis for a finding of extrajudicial bias by the Magistrate Judge.

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V.

CONCLUSION

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Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motions for

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appointment of counsel, filed on March 12, 2018, and March 29, 2018, are DENIED without

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prejudice.

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IT IS SO ORDERED.
Dated:

May 3, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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