Stribling v. Mott et al

Filing 88

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/22/2019 ORDERING, within 14 days, defendants shall respond to plaintiff's allegation that he as been separated from his property since 6/21/2018, thereby leaving him unable to respond to their discovery requests as ordered; and DENYING plaintiff's 83 motion for disqualification. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON LAMONT STRIBLING,

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No. 2:16-cv-0400 MCE CKD P

Plaintiff,

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v.

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R. MOTT, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

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U.S.C. § 1983. Currently before the court is plaintiff’s motion for an extension of time and to

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disqualify the undersigned magistrate judge. (ECF No. 83.)

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I.

Motion for Extension of Time
By order filed August 29, 2018, the undersigned granted defendant Mott’s motion to

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compel and ordered plaintiff to provide supplemental responses to Mott’s Interrogatory Nos. 1-3

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and Requests for Production Nos. 1-5 within thirty days of service of the order. (ECF No. 75 at

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10.) Defendant Salz’ motion to compel was also granted, and plaintiff was ordered to fully

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respond to Salz’ requests for production and interrogatories without objection within thirty days.

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(Id. at 11.) Plaintiff then filed a motion for reconsideration (ECF No. 77), which the District

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Judge denied in an order filed October 16, 2018 (ECF No. 80).

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Defendants Mott, Andrichuk, Bell-Sprinkle, Glenn, Johnson, Molina, Morrow, Murillo,

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Schneider, and Terry1 subsequently moved to modify the scheduling order to extend the

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dispositive motion deadline after plaintiff failed to provide supplemental responses. (ECF No.

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81.) Because of plaintiff’s pro se status, the court assumed that he had believed that his

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obligation to provide discovery as ordered was stayed pending resolution of his motion for

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reconsideration. (ECF No. 82 at 2.) The court then extended plaintiff’s deadline to provide

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discovery responses to thirty days after the service of the order denying his motion for

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reconsideration. (Id. at 2.) Defendants, including defendant Salz, were then given additional time

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to file any motions for sanctions based on plaintiff’s continued failure to comply with the August

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29, 2018 order. (Id.)

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Shortly before his deadline to submit supplemental discovery responses expired, plaintiff

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filed a motion for an extension of time in which he sought an additional ninety days to provide

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supplemental responses to defendants’ discovery requests. (ECF No. 83.) In the motion, plaintiff

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claims that on June 21, 2018, he was transferred to California State Prison (CSP), Corcoran, and

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has been without access to all of his property since that time because it is still at CSP,

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Sacramento. (Id.) It appears that the transfer is intended to be temporary and that plaintiff will be

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sent back to CSP, Sacramento after his court proceedings are complete. (Id. at 4.) Defendants

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did not respond to the motion and instead filed motions for sanctions, neither of which address

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plaintiff’s claim that he has been separated from his legal property since June 21, 2018. (ECF

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Nos. 84, 85.)

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While plaintiff’s claim that he has been separated from his property does not excuse him

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from timely responding to discovery requests to the best of his ability, it does raise serious

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concerns about his ability to fully respond to the requests, particularly those for documents.

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Accordingly, defendants will be required to address this claim.

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II.

Motion to Disqualify

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Plaintiff’s motion for an extension of time also included a motion to disqualify the

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undersigned. (ECF No. 83.) Said motion is properly before the undersigned, as the Ninth Circuit

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Defendant Salz is represented by separate counsel and did not join in the motion.
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has “held repeatedly that the challenged judge h[er]self should rule on the legal sufficiency of a

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recusal motion in the first instance.” United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986)

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(citing United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978)). If the affidavit is legally

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insufficient, then recusal can be denied. United States v. $292,888.04 in U.S. Currency, 54 F.3d

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564, 566 (9th Cir. 1995).

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“Whenever a party to any proceeding in a district court makes and files a timely and

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sufficient affidavit that the judge before whom the matter is pending has a personal bias or

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prejudice either against him or in favor of any adverse party, such judge shall proceed no further

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therein.” 28 U.S.C. § 144. “Any justice, judge, or magistrate judge of the United States shall

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disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

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28 U.S.C. § 455(a). Under both recusal statutes, the substantive standard is “whether a

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

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might reasonably be questioned.” Studley, 783 F.2d at 939 (quoting Mayes v. Leipziger, 729

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F.2d 605, 607 (9th Cir. 1984) (internal quotations omitted)).

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Plaintiff argues that the undersigned should be disqualified because the order granting

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defendants’ motion to modify the scheduling order (ECF No. 82), “bla[ta]ntly and bluntly showed

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prejudice against [him] insomuch to effect the whole outcome of this case. By persuading

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defendant on what legal action to take.” (Id. at 1.) He appears to believe that the undersigned’s

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extension of the time for defendants to file a motion for sanctions was a directive to defendants to

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file such a motion. (Id.)

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Plaintiff’s allegation of bias is misplaced. Contrary to his assertion, the motion granting

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the order to amend the scheduling order did not direct or recommend that defendants file a motion

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for sanctions. (ECF No. 82.) Rather, the motion extended a deadline that was already in

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existence. (Id. at 2.) Furthermore, recusal “is required ‘only if the bias or prejudice stems from

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an extrajudicial source and not from conduct or rulings made during the course of the

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proceeding.’” Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 885 (9th Cir. 1991) (quoting

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Toth v. TransWorld Airlines, 862 F.2d 1381, 1388 (9th Cir. 1988)).

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Plaintiff’s allegation of bias is based on his misunderstanding of the undersigned’s
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previous order and is legally insufficient to establish a reasonable question as to the undersigned’s

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impartiality or that a bias or prejudice exists. The request for recusal will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that:

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Within fourteen days of the filing of this order, defendants shall respond to plaintiff’s

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allegation that he has been separated from his property since June 21, 2018, thereby leaving him

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unable to respond to their discovery requests as ordered.

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2. Plaintiff’s motion for disqualification (ECF No. 83) is denied.
Dated: January 22, 2019

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