(PC) Andrade v. Miles et al

Filing 25

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/8/2019 DENYING 23 Motion to Appoint Counsel; ORDERING Clerk to randomly assign a U.S. District Judge to this case; DENYING 19 Request for Recusal; and RECO MMENDING 14 Fourth Amended Complaint be dismissed in its entirety, with prejudice, for failure to state a claim and as frivolous. Assigned and referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 GEORGIA MILES, 11 12 13 No. 2:19-cv-402 EFB P Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS BENJAMIN LEON ANDRADE, et al., 14 Defendants. 15 16 Plaintiff proceeds without counsel in this action brought pursuant to 42 U.S.C. § 1983. 17 On May 22, 2019, the court dismissed her previous complaints with leave to amend after finding 18 that, for screening purposes, she had failed to state a cognizable claim. ECF No. 12. Plaintiff has 19 now filed a third and fourth amended complaint. ECF Nos. 13 & 14. The fourth amended 20 complaint supersedes the third and, having reviewed that pleading, the court recommends that this 21 action be dismissed, without further leave to amend, for failure to state a cognizable claim. 22 Plaintiff’s motion for recusal (ECF No. 19) and motion for appointment of counsel (ECF No. 23) 23 are also denied. Screening 24 25 I. Legal Standards 26 Pursuant to § 1915(e)(2), the court must dismiss the case at any time if it determines the 27 allegation of poverty is untrue, or if the action is frivolous or malicious, fails to state a claim on 28 which relief may be granted, or seeks monetary relief against an immune defendant. 1 1 Although pro se pleadings are liberally construed, see Haines v. Kerner, 404 U.S. 519, 2 520-21 (1972), a complaint, or portion thereof, should be dismissed for failure to state a claim if it 3 fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 4 Corp. v. Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 5 (1957)); see also Fed. R. Civ. P. 12(b)(6). “[A] plaintiff's obligation to provide the ‘grounds’ of 6 his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of 7 a cause of action's elements will not do. Factual allegations must be enough to raise a right to 8 relief above the speculative level on the assumption that all of the complaint's allegations are 9 true.” Id. (citations omitted). Dismissal is appropriate based either on the lack of cognizable 10 legal theories or the lack of pleading sufficient facts to support cognizable legal theories. 11 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). 12 In reviewing a complaint under this standard, the court must accept as true the allegations 13 of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 14 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in 15 the plaintiff's favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). A pro se plaintiff must 16 satisfy the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure. Rule 17 8(a)(2) “requires a complaint to include a short and plain statement of the claim showing that the 18 pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the 19 grounds upon which it rests.” Twombly, 550 U.S. at 562-563 (2007). 20 II. 21 Plaintiff’s claims are incomprehensible. She alleges that law enforcement, county Analysis 22 officials, judges, clergy and physicians have committed “crimes against children, humanity and 23 the constitution” as part of a wide-ranging conspiracy. ECF No. 14 at 6. She alleges that the 24 crimes include embezzlement, fraud, rape, “repression,” and kidnapping. Id. at 7. Plaintiff 25 claims that brainwashing has occurred and that the Mormon Church is somehow involved. Id. 26 Ultimately, neither the specific crimes nor the context in which they were allegedly committed is 27 ever satisfactorily explained. 28 ///// 2 1 A court is empowered to dismiss claims based on “factual contentions that are clearly 2 baseless” or which describe “fantastic or delusional scenarios.” Neitzke v. Williams, 490 U.S. 3 319, 327-28 (1989). The court recommends that the claims at bar be dismissed without leave to 4 amend on that basis. 5 6 Request for Recusal Motions for recusal fall under two statutory provisions, 28 U.S.C. § 144 and 28 U.S.C. 7 § 455. A judge is required to disqualify himself if his impartiality might reasonably be 8 questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice concerning a party, 28 9 U.S.C. § 455(b)(1). Additionally, recusal is required under § 144 when a party “makes and files a 10 timely and sufficient affidavit that the judge before whom the matter is pending has a personal 11 bias or prejudice either against him or in favor of any adverse party . . . .” See United States v. 12 Sibla, 624 F.2d 864, 868 (9th Cir. 1980) (affidavit filed pursuant to § 144 is not legally sufficient 13 where it contains only conclusions and is devoid of specific fact allegations tending to show 14 personal bias stemming from an extrajudicial source). Here, plaintiff does not identify any 15 specific or legitimate grounds for recusal and her motion must be denied. Plaintiff makes only 16 vague and unsubstantiated accusations of “bias,” “sexual discrimination,” and “misconduct,” and 17 notes that she has received several unfavorable rulings in this case. See ECF No. 19; see Liteky v. 18 United States, 510 U.S. 540, 555 (1994) (judicial rulings alone almost never constitute a valid 19 basis for a recusal motion based on bias or impartiality); United States v. Johnson, 610 F.3d 1138, 20 1147 (9th Cir. 2010) (same). 21 22 Motion for Appointment of Counsel Plaintiff also requests the appointment of counsel. ECF No. 23. District courts may 23 authorize the appointment of counsel to represent an indigent civil litigant in certain exceptional 24 circumstances. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th 25 Cir.1991); Wood v. Housewright, 900 F.2d 1332, 1335–36 (9th Cir.1990); Richards v. Harper, 26 864 F.2d 85, 87 (9th Cir. 1988). In considering whether exceptional circumstances exist, the 27 court must evaluate (1) the plaintiff’s likelihood of success on the merits; and (2) the ability of the 28 plaintiff to articulate her claims pro se in light of the complexity of the legal issues involved. 3 1 Terrell, 935 F.2d at 1017. The court cannot conclude that plaintiff’s likelihood of success, the 2 complexity of the issues, or the degree of plaintiff’s ability to articulate her claims amount to 3 exceptional circumstances justifying the appointment of counsel at this time. 4 Conclusion 5 Accordingly, it is ORDERED that: 6 1. 7 8 9 10 11 The Clerk of Court is directed to randomly assign a United States District Judge to this case; and 2. Plaintiff’s request for recusal (ECF No. 19) and motion for appointment of counsel (ECF No. 23) are denied. Further, it is RECOMMENDED that plaintiff’s fourth amended complaint (ECF No. 14) be DISMISSED in its entirety, with prejudice, for failure to state a claim and as frivolous. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Turner v. 18 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 DATED: October 8, 2019. 20 21 22 23 24 25 26 27 28 4

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