Furnace v. Cope et al

Filing 29

ORDER denying 28 Motion to transfer venue and Motion for recusal signed by Magistrate Judge Barbara A. McAuliffe on 12/5/2017. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD FURNACE,

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Plaintiff,

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ORDER DENYING MOTION TO TRANSFER
VENUE AND MOTION FOR RECUSAL

v.

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Case No. 1:16-cv-00420-LJO-BAM (PC)

B. COPE, et al,

(ECF No. 28)

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Defendants.

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Plaintiff Edward Furnace (“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. Currently before the Court is

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Plaintiff’s motion to transfer venue and motion for recusal, filed December 1, 2017. (ECF No.

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28.) The motion is deemed submitted upon the record without oral argument. Local Rule 230(l).

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I.

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Plaintiff’s Motion
Plaintiff requests transfer of this action to the Eastern District of California, Sacramento

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Division. Plaintiff states that delays in screening the complaint have prejudiced Plaintiff and

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prevented him from filing additional claims against other parties in collusion with the defendants

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in this action. In addition, Plaintiff argues that transfer to the Sacramento Division is proper

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because one of the major parties resides in or works in the Sacramento area. In his declaration in

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support of the motion, Plaintiff further declares that the undersigned is biased against him, and

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requests a transfer of venue, or in the alternative, the removal of the undersigned from his case.
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(ECF No. 28.) The Court construes Plaintiff’s declaration as a motion for recusal.

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A.

Transfer of Venue

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“For the convenience of parties and witnesses, in the interest of justice, a district court

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may transfer any civil action to any other district or division where it might have been brought or

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to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). “A civil

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action may be brought in—(1) a judicial district in which any defendant resides, if all defendants

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are residents of the State in which the district is located; [or] (2) a judicial district in which a

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substantial part of the events or omissions giving rise to the claim occurred . . . .” 28 U.S.C.

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§ 1391(b). The party seeking the transfer must meet an initial threshold burden by demonstrating

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that the action could have been brought in the proposed transferee district. 28 U.S.C. § 1391(b);

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28 U.S.C. § 1404(a); Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985); Park v. Dole

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Fresh Vegetables, Inc., 964 F.Supp.2d 1088, 1093 (N.D. Cal. 2013).

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The events at issue here occurred at Kern Valley State Prison, which is located within the

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boundaries of the Fresno Division of the Eastern District of California. Although Defendants’

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residences are unknown, given their employment at Kern Valley State Prison in Delano,

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California, they more than likely do not reside in the Sacramento Division of the Eastern District

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of California given the substantial geographical distance. Although Plaintiff states that one of the

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defendants—he does not specify which one—resides in or works in the Sacramento Division,

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given that the second amended complaint has not yet been screened, this factor is not dispositive.

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Plaintiff’s motion makes clear that his request to transfer venue is motivated by his desire to have

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his case transferred to a judge Plaintiff believes is more inclined to screen the complaint in his

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favor.

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With respect to Plaintiff’s arguments related to delay and judicial selection, such

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objections do not provide proper reasons to transfer this case. Moreover, this Court has one of the

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busiest dockets in the country, and the screening process is made no easier by the filing of

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voluminous pleadings such as those presented by plaintiff in this case. (See, e.g., ECF No. 1

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(initial complaint, 49 pages); ECF No. 10 (first amended complaint, 109 pages); ECF No. 24

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(second amended complaint, 74 pages).)
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For these reasons, Plaintiff’s motion for transfer of venue shall be denied.

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B.

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A magistrate judge must disqualify himself if “his impartiality might be reasonably

Disqualification of a Judge

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questioned,” 28 U.S.C. § 455(a), or if “he has a personal bias or prejudice concerning a party, or

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personal knowledge of disputed evidentiary facts concerning the proceeding,” 28 U.S.C.

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§ 455(b)(1). “[J]udicial rulings or information acquired by the court in its judicial capacity will

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rarely support recusal.” United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (citing

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Liteky v. United States, 510 U.S. 540, 555 (1994)).

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The objective test for determining whether recusal is required is whether a reasonable

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

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reasonably be questioned. Johnson, 610 F.3d at 1147 (quotation marks and citation omitted);

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Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). “Adverse findings do not equate to

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bias,” Johnson, 610 F.3d at 1147.

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Plaintiff’s arguments are not sufficient to show personal bias or prejudice by the

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undersigned. Plaintiff’s belief that the undersigned is biased against him and an “avid

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sympathizer” with the defendants does not make recusal either necessary or appropriate under

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§ 455. Clemens v. U.S. Dist. Ct. for Cent. Dist. of Cal., 428 F.3d 1175, 1180 (9th Cir. 2005)

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(noting that speculative allegations of bias are not sufficient to warrant recusal). Plaintiff’s

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objection to the Court’s delay in screening does not in and of itself demonstrate bias against him

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or favoritism toward Defendants. Plaintiff’s allegation that the undersigned has deliberately

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delayed the screening of his complaint is founded on nothing more than speculation and

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Plaintiff’s frustration at the pace of litigation. While the undersigned understands Plaintiff’s

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frustration that his case has been pending many years before this Court, these delays are not

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attributable to any bias toward him, but rather to the fact that judges in the Eastern District of

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California maintain some of the heaviest caseloads in the nation, as noted above.

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Plaintiff’s conclusory allegations, based on nothing more than speculation, are legally

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insufficient to establish a reasonable question as to the undersigned’s impartiality or that a bias or

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prejudice exists. The request for recusal will therefore be denied.
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II.

Conclusion and Order
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for transfer of

venue and motion for recusal, (ECF No. 28), are DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 5, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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