McCain v. California Highway Patrol et al

Filing 92

ORDER signed by Judge Kimberly J. Mueller on 12/16/11 ORDERING that Plaintiff's MOTIONS 84 , 87 and 88 are DENIED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERRY LYN MCCAIN,
Plaintiff,

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No. CIV S-11-1265 KJM-KJN

vs.
CALIFORNIA HIGHWAY PATROL; et al.,
Defendants.

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ORDER
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This matter comes before the court upon plaintiff’s filing of three motions. (ECF

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84, 87 & 88.)

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ECF 84
Plaintiff filed this “motion to request de novo Title 28 U.S.C. § 636(b)(1)(C)” on

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December 1, 2011. The court construes this as a motion for reconsideration of the magistrate

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judge’s denial without prejudice1 (ECF 81) of plaintiff’s motion for partial summary judgment

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against defendant California Highway Patrol (“CHP”) (ECF 79). The magistrate judge denied

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this motion pending review of the F&Rs recommending dismissal of defendant CHP (ECF 38)

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Insofar as plaintiff contends that the magistrate judge lacked the authority to issue this
order, denials without prejudice are non-dispositive orders because plaintiff has leave to refile.
Therefore, the magistrate judge was not required to submit findings and recommendations
(“F&Rs”).
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by the undersigned. The undersigned has since adopted the magistrate judge’s F&Rs, dismissing

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CHP with prejudice. (ECF 90.) Accordingly, this motion is denied as moot.

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ECF 87

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Plaintiff filed this “notice to revoke order document no. #79” on December 1,

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2011. Insofar as this “notice” is repetitive of ECF 84, plaintiff’s requests are denied as moot.

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Moreover, plaintiff’s contention that defendants could not file their motions to dismiss without

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filing pleadings and are in default for their failure to file pleadings is wholly without merit. It is

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black letter law that a party may file a motion to dismiss in lieu of an answer within the time

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period for filing an answer.

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However, plaintiff also brings this motion in part under 28 U.S.C. § 144, in

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conjunction with a separately filed affidavit.2 (ECF 85.) Section 144 provides: “Whenever a

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party to any proceeding in a district court makes and files a timely and sufficient affidavit that

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the judge before whom the matter is pending has a personal bias or prejudice either against him

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or in favor of any adverse party, such judge shall proceed no further therein, but another judge

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shall be assigned to hear such proceeding.” The standard for disqualification under this section

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is: “‘whether a reasonable person with knowledge of all the facts would conclude that the

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judge’s impartiality might reasonably be questioned.’” Bridgeman v. United States, 2010 U.S.

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Dist. LEXIS 137637, * 6 (E.D. Cal. Dec. 16, 2010) (quoting United States v. Hernandez, 109

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F.3d 1450, 1453-54 (9th Cir. 1997) (internal quotation omitted)). “[I]n order for the ‘alleged

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bias and prejudice to be disqualifying’ in the context of a Section 144 affidavit, it must stem

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from an ‘extrajudicial source.’” Id. (quoting United States v. Grinnell Corp., 384 U.S. 563, 583

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(1966)). However, “neither the presence of an extrajudicial source necessarily establishes bias,

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nor [does] the absence of an extrajudicial source necessarily preclude[] bias . . . .” Liteky v.

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United States, 510 U.S. 540, 554 (1994). Moreover, “judicial rulings alone almost never

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The court does not consider Marc Guisto’s affidavit. (ECF 86.) He is not a party to this

action.
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constitute a valid basis for a bias or partiality motion.” Id. at 555; see also United States v.

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Johnson, 610 F.3d 1138, 1148 (9th Cir. 2010) (“Adverse findings do not equate to bias.”).

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None of plaintiff’s contentions would lead a reasonable person to conclude that

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the magistrate judge’s impartiality can reasonably be questioned. Plaintiff has wholly failed to

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show that the magistrate judge displayed “a deep-seated favoritism or antagonism that would

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make fair judgment impossible.” Liteky, 510 U.S. at 555.

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ECF 88

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This motion filed on December 5, 2011 asking the court to consider her motion
for partial summary judgment (ECF 79) de novo is denied as moot. As stated previously, the

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court has dismissed defendant CHP with prejudice and any motions involving the CHP are moot.

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CONCLUSION

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For the foregoing reasons, plaintiff’s motions (ECF 84, 87, & 88) are DENIED.

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IT IS SO ORDERED.

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DATED: December 16, 2011.

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UNITED STATES DISTRICT JUDGE

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