Brown v. Brown et al

Filing 21

ORDER DENYING Plaintiff's Motion to Vacate Consent to Magistrate Judge 20 , signed by Magistrate Judge Barbara A. McAuliffe on 3/16/15. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODNEY O’NEAL BROWN,

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Plaintiff,
v.

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JEFFREY BROWN, et al.,

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Defendants.

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Case No.: 1:14-cv-01184-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTION TO
VACATE CONSENT TO MAGISTRATE JUDGE
(ECF No. 20)

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Plaintiff Rodney O’Neal Brown (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on July

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29, 2014. On August 14, 2014, Plaintiff filed a motion to amend his pleading. (ECF No. 5.) On

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August 18, 2014, the Court denied the motion to amend as unnecessary because Plaintiff was entitled

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to amend his complaint as a matter of right and without the need for a court order. (ECF No. No. 7.)

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On October 1, 2014, Plaintiff filed a motion to amend his complaint to reflect the true names of

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defendants. (ECF No. 9.) On October 2, 2014, the Court again denied the motion to amend as

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unnecessary because Plaintiff was entitled to amend his complaint without the need for a court order.

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(ECF No. 15.) On February 2, 2015, Plaintiff filed a first amended complaint. (ECF No. 18.)

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On February 25, 2015, Plaintiff filed a notice of intent to lodge a complaint with the Judiciary
Committee against the undersigned. (ECF No. 19.) On March 11, 2015, Plaintiff filed the instant
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motion entitled “Notice of Motion and A Motion to Vacate Plaintiff Consent to Magistrate Being

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Appointed and Notice to Recuse with Request to Take Judicial Notice to Complaints of Judicial

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Misconduct.” (ECF No. 20.) By the motion, Plaintiff to seeks to vacate his consent to the

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undersigned Magistrate Judge due to the failure to screen his complaint in “over 9 months.” (Id., p. 1.)

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He also seeks recusal of the undersigned. Plaintiff contends that the failure to screen his complaint has

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denied him access to the courts and resulted in injury.

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Plaintiff’s complaints about the delay in screening lack merit. As reflected on the docket,

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Plaintiff filed two motions to amend his complaint. The first motion was filed on August 14, 2014,

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less than one month after he initiated this action. The Court addressed the motion the following day

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and informed Plaintiff of his entitlement to amend without leave of court. (ECF Nos. 6, 7.) Plaintiff

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did not file an amended complaint. Rather, less than eight weeks later, Plaintiff filed a second motion

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to amend his complaint on October 1, 2014. Again, the Court addressed the motion the following day,

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reiterating that Plaintiff was entitled to amend his complaint without leave of court. (ECF Nos. 16,

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15.) Four months later, on February 2, 2015, Plaintiff filed his amended complaint. As this filing

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occurred approximately six weeks ago, the Court has not unreasonably delayed screening of the

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complaint for nine months. Furthermore, Plaintiff is informed that the Eastern District of California

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maintains one of the heaviest caseloads in the nation, and many of those cases are civil rights

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complaints filed by prisoners proceeding pro se that require screening. This may result in some delay

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in individual matters. Plaintiff’s amended complaint will be screened in due course.

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Plaintiff’s request to withdraw consent also lacks merit. Plaintiff has not consented to the

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jurisdiction of the undersigned Magistrate Judge. In fact, on September 29, 2014, Plaintiff filed his

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decline of jurisdiction of a United States Magistrate Judge and request for reassignment to a United

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States District Judge. (ECF No. 13.) Thereafter, this case was assigned to United States District

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Judge Lawrence J. O’Neill and the undersigned. (ECF No. 14.) If a party declines Magistrate Judge

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jurisdiction, as Plaintiff did in this case, the District Judge will resolve all dispositive matters and

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conduct the trial, if there is one. However, a party’s decision to decline Magistrate Judge jurisdiction

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has no effect on the referral of the case to a Magistrate Judge for non-dispositive matters, including

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screening orders, and for the issuance of Findings and Recommendations on dispositive motions. 28

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U.S.C. § 636(b)(1); Local Rule 302.

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As a final matter, Plaintiff’s request for recusal of the undersigned is not warranted.

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Disqualification is required if a judge’s impartiality might reasonably be questioned, or if the judge

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has a personal bias or prejudice for or against a party. Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1045

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(9th Cir. 1988) (citing 28 U.S.C. §§ 455(a), 455(b)(1)), aff’d, 496 U.S. 543, 110 S.Ct. 2535 (1990).1

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“The bias must stem from an extrajudicial source and not be based solely on information gained in the

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course of the proceedings.” Id. (citing In re Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir.

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1984)). Plaintiff’s dissatisfaction with any perceived delay in screening this matter does not constitute

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a valid basis for a bias or partiality motion. See, e.g., In re Focus Media, Inc., 378 F.3d 916, 930 (9th

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Cir. 2004) (judicial rulings alone almost never constitute a valid basis for a bias or partiality motion)

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(citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994)).
Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion to vacate consent to

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the Magistrate Judge, filed on March 11, 2015, is DENIED.

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IT IS SO ORDERED.

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Dated:

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/s/ Barbara

March 16, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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Recusal also is required for personal bias or prejudice under 28 U.S.C. § 144. However, this section requires the
filing of an affidavit alleging such bias. As no affidavit was filed, section 144 is not applicable. Hasbrouck, 842 F.2d at
1045, n. 9.

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