Williams v. Santiago

Filing 20

ORDER DENYING 18 Motion to Recuse and Motion to Appoint Counsel signed by Magistrate Judge Michael J. Seng on 2/21/18. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL B. WILLIAMS,

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Plaintiff,

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CASE NO. 1:16-cv-01065-MJS (PC)
ORDER DENYING MOTION TO RECUSE
AND MOTION TO APPOINT COUNSEL

v.
(ECF NO. 18)
JESSICA SANTIAGO,
Defendant.

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Plaintiff is a civil detainee proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. Plaintiff consented to Magistrate

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Judge jurisdiction. (ECF No. 3.) No other party has appeared.

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Plaintiff initiated this action on July 25, 2016. (ECF No. 1.) On November 1, 2016,

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the Court dismissed Plaintiff’s complaint with leave to amend. (ECF No. 7.) On February

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13, 2017, the Court screened Plaintiff’s first amended complaint and found it again

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stated no cognizable claims. (ECF No. 9.) Plaintiff was granted thirty days to amend.

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(Id.) His March 1, 2017 second amended complaint (ECF No. 10) was dismissed with

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prejudice on April 7, 2017 for failure to state a claim. (ECF No. 11.) Plaintiff filed a Notice

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of Appeal on April 24, 2017. (ECF No. 12.)

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On January 25, 2018, the Ninth Circuit, citing its recent decision in Williams v.

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King, 875 F.3d 500, 503-04 (9th Cir. 2017), vacated the dismissal order and remanded

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the action for further proceedings because all parties, including unserved defendants,

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must consent to proceed before a magistrate judge for jurisdiction to vest. (ECF No. 17

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at 2.) On February 16, 2018, the Ninth Circuit’s mandate was entered in this case. (ECF

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No. 19.) On February 15, 2018, Plaintiff filed a motion to appoint counsel and motion for

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recusal of the undersigned Magistrate Judge. (ECF No. 18.)

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For the reasons outlined below the motion to appoint counsel and motion for

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recusal of the undersigned are denied.

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I.

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Motion to Appoint Counsel
Plaintiff appears to seek appointment of counsel on the ground that his complaint

presents cognizable claims for relief. However, no court has made such a finding.

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

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

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attorney to represent plaintiff pursuant to 28 U.S.C. ' 1915(e)(1), Mallard v. United States

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District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances the court may request the voluntary assistance of counsel

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pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. However, without a reasonable

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method of securing and compensating counsel, the court will seek volunteer counsel

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

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

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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

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omitted).
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In the present case, the court does not find the required exceptional

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circumstances, especially since the Court has not even determined if Plaintiff has

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presented any cognizable claims for relief. While this Court’s Order dismissing Plaintiff’s

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second amended complaint was vacated by the Ninth Circuit, it was done so because

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the Undersigned was not vested with jurisdiction, not on the merits of Plaintiff’s second

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amended complaint, which the Ninth Circuit did not address on its ruling. (ECF No. 17.)

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Furthermore, even if it is assumed that Plaintiff is not well versed in the law and

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that he has made serious allegations which, if proved, would entitle him to relief, his case

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is not exceptional. This Court is faced with similar cases almost daily.

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Thus, the motion for appointment of counsel will be denied without prejudice.
II.

Motion to Recuse

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Plaintiff moves to disqualify the undersigned Magistrate Judge from this action

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because of apparent bias. (ECF No. 18.) Specifically, Plaintiff argues that because the

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undersigned dismissed Plaintiff’s second amended complaint and the Ninth Circuit

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vacated that dismissal, the undersigned has exhibited bias towards him. (Id.)

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Federal law provides that a party may seek recusal of a judge based on bias or

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prejudice. 28 U.S.C. § 144. The standard for recusal under 28 U.S.C. § 144 is “‘whether

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

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

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1984) (quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983)). To provide

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

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

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Section 144 expressly conditions relief upon the filing of a timely and legally

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sufficient affidavit. A judge who finds the affidavit legally sufficient must proceed no

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further under Section 144 and must assign a different judge to hear the matter. See 28

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U.S.C. § 144; United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Nevertheless,

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where the affidavit is not legally sufficient, the judge at whom the motion is directed can

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determine the matter. See United States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999)
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(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 Section 144 affidavit is a judge

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obligated to reassign decision on merits to another judge)). If the affidavit is legally

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insufficient, then recusal can be denied. See United States v. $292,888.04 in U.S.

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Currency, 54 F.3d 564, 566 (9th Cir. 1995).

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Plaintiff’s motion for recusal in this case is substantively insufficient under Section

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144 because it fails to allege facts that would support the contention that the

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undersigned has exhibited bias or prejudice directed towards plaintiff from an

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extrajudicial source. See Sibla 624 F.2d at 868 (“An affidavit filed pursuant to [§ 144] is

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not legally sufficient unless it specifically alleges facts that fairly support the contention

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that the judge exhibits bias or prejudice directed toward a party that stems from an

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extrajudicial source.”). Plaintiff’s motion for recusal explicitly alleges bias and prejudice

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arising solely out of judicial actions taken by the undersigned. Plaintiff complains that the

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undersigned is biased against him based on the April 7, 2017 Order dismissing his

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second amended complaint. (ECF No. 18 at 3-4.)

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The issues raised by Plaintiff in his motion for recusal are not proper grounds to

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disqualify a judge for bias and prejudice. As the United States Supreme Court has noted,

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“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”

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Liteky v. United States, 510 U.S. 540, 555 (1994). Instead, the judicial rulings are a basis

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for appeal, not recusal. See id. (“In and of themselves . . . [judicial rulings] cannot

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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. Almost invariably, they are proper grounds for appeal,

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not for recusal.”); Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) (“[Plaintiff’s]

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allegations stem entirely from the district judge’s adverse rulings. That is not an

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adequate basis for recusal.”) (citations omitted).

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Accordingly, Plaintiff’s motion for recusal must be denied.

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III.

Conclusion and Order
For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s motion for

appointment of counsel and motion for recusal are DENIED.

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IT IS SO ORDERED.
Dated:

February 21, 2018

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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