Pierce v. California Department of Corrections et al

Filing 11

ORDER DENYING Plaintiff's 9 Motion for Reconsideration and DENYING 10 Motion to Disqualify, signed by District Judge Dale A. Drozd on 8/2/16. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SEAVON PIERCE,

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Plaintiff,

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No. 1:16-cv-00499-DAD-DLB (PC)

v.
STATE OF CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,

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ORDER DENYING PLAINTIFFS’S MOTION
FOR RECONSIDERATION AND MOTION
TO DISQUALIFY
(Doc. Nos. 9 and 10)

Defendants.

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Plaintiff Seavon Pierce, a state prisoner proceeding pro se, filed this civil rights action in the

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U.S. District Court for the Northern District of California on March 22, 2016. (Doc. No. 1.) The

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action was transferred to this court on April 6, 2016. (Doc. No. 4.) On May 4, 2016, the court

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denied plaintiff’ application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). (Doc.

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No. 7.) The action was therefore dismissed without prejudice to refiling accompanied by the filing

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fee. (Id. at 2–3.) On May 23, 2016, plaintiff submitted two filings—a motion for reconsideration of

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the order dismissing this action without prejudice and a motion to disqualify the magistrate judge

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and district judge assigned to this case. (Doc. Nos. 9 and 10.) For the reasons that follow, both

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motions are denied.

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I. Motion for Reconsideration
“A motion for reconsideration should not be granted, absent highly unusual circumstances,

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unless the district court is presented with newly discovered evidence, committed clear error, or if

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there is an intervening change in the controlling law.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma

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GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted).

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“A party seeking reconsideration must show more than a disagreement with the Court’s decision,

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and recapitulation” of that which was already considered by the court in rendering its decision. U.S.

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v. Westlands Water Dist., 134 F. Supp. 2d 1111, 1131 (E.D. Cal. 2001). To succeed, a party must set

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forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision.

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See Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986), aff’d in

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part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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Additionally, pursuant to this court’s Local Rules, when filing a motion for reconsideration, a

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party must show what “new or different facts or circumstances claimed to exist which did not exist

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or were not shown upon such prior motion, or what other grounds exist for the motion.” Local Rule

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230(j).
In his motion for reconsideration, plaintiff appears to disagree with the court’s classification

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of this action as a civil rights complaint. (Doc. No. 9.) He contends that instead of a civil rights

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action, he filed a “statutory action permitted by statutory law” under the False Claims Act. Plaintiff

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accuses the court of fraud and suggests that 28 U.S.C § 1915(g) does not apply.1 Plaintiff’s

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arguments in this regard do not present grounds for reconsideration. First, § 1915(g) by its terms

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applies to all civil actions including appeals of a judgment in a civil action and is not limited to

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actions concerning conditions of confinement, meaning that it is applicable regardless of how

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plaintiff characterizes the nature of his action. Second, as has been explained to plaintiff by other

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courts, “the Ninth Circuit has repeatedly held that pro se plaintiffs are prohibiting from pursuing

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claims on behalf of others, and specifically may not prosecute False Claims qui tam actions on

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behalf of the United States without retaining licensed counsel.” Pierce v. Cal. Dep’t of Corr., No.

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1:15-cv-00482 BAM PC, 2015 WL 6081905, at *1 (E.D. Cal. Oct. 13, 2015) (citing Simon v.

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Plaintiff has filed numerous actions in the district courts within the State of California alleging
similar claims.
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Hartford Life, Inc., 546 F.3d 661, 664–65 (9th Cir. 2008). Therefore, as a party proceeding pro se,

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plaintiff cannot bring any False Claims actions on behalf of the United States as he has attempted to

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do here.

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II. Motion for Disqualification
Under 28 U.S.C. § 144, “whenever 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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Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008).
Under 28 U.S.C. § 455(a), “[a]ny ... judge ... shall disqualify himself in any proceeding in

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which his impartiality might reasonably be questioned.” Pesnell, 543 F.3d at 1043. 28 U.S.C.

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§ 455(b) provides in relevant part, “[h]e shall also disqualify himself in the following circumstances:

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[w]here he has a personal bias or prejudice concerning a party . . .” 28 U.S.C. § 455(b)(1).
Under both recusal statutes, the substantive standard is “[W]hether a reasonable person with

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knowledge of all the facts would conclude that the judge’s impartiality might reasonably be

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questioned.” Pesnell, 543 F.3d at 1043 (citing United States v. Hernandez, 109 F.3d 1450, 1453 (9th

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Cir. 1997). However, the bias must arise from an extrajudicial source and cannot be based solely on

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information gained in the course of the proceedings. Id. (citing Liteky v. United States, 510 U.S.

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540, 554–56 (1994). “Judicial rulings alone almost never constitute a valid basis for a bias or

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partiality motion.” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004) (quoting Liteky, 510

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U.S. at 555.)

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Here, plaintiff’s motion for disqualification is apparently based on his belief that the assigned

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judges have wrongfully prohibited him from proceeding on behalf of the United States in this action.

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(Doc. No. 10.) Not only is plaintiff incorrect, for the reasons discussed above, but he has failed to

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present any facts to suggest impartiality or bias on the part of the assigned judges outside of this

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court’s legal rulings.

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III. Conclusion
For the reasons set forth above, plaintiff’s motion for reconsideration (Doc. No. 9) and

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motion for disqualification (Doc. No. 10) are denied.

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IT IS SO ORDERED.

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Dated:

August 2, 2016
UNITED STATES DISTRICT JUDGE

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