(PC) Smith v. Municipality of Fresno County et al
Filing
149
ORDER signed by Magistrate Judge Allison Claire on 8/16/2023 DENYING plaintiff's 138 omnibus motion, and GRANTING in part plaintiff's 148 motion for an extension of time. The Clerk shall send plaintiff copies of the following: a. This court's ifp application for a non-prisoner; b. The Rand Notice included in defendants' motion for summary judgment (see ECF No. 135-1); c. Federal Rule of Civil Procedure 56; and d. Local Rules 230 and 260. Within 30 days, plaintiff sh all file: a. The completed ifp application by a non-prisoner, and b. Either an opposition to defendants' motion for summary judgment or a statement of non-opposition to the motion which complies with the Rand Notice and federal and local rules. (Yin, K)
Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 1 of 5
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
GARY PAUL SMITH,
12
13
14
15
16
No. 2:21-cv-1992 DJC AC P
Plaintiff,
v.
ORDER
MUNICIPALITY OF FRESNO COUNTY,
et al.,
Defendants.
17
18
Plaintiff, a former state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983.
19
Before the court are plaintiff’s omnibus motion to amend the complaint and to disqualify judges,
20
which also includes a conclusory statement of opposition to defendants’ pending summary
21
judgment motion and purports to seek summary judgment in plaintiff’s favor. ECF No. 138.
22
Plaintiff has also filed a motion for an extension of time to file: (1) an in forma pauperis
23
application for a non-prisoner, and (2) an opposition to defendants’ motion for summary
24
judgment. ECF No. 148.
25
For the reasons stated below, plaintiff’s motion to amend the complaint and to disqualify
26
judges will be denied. The statement of opposition to defendants’ summary judgment motion will
27
be disregarded, as will defendants’ reply to it, and plaintiff will be provided additional time to
28
submit a proper opposition.
1
Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 2 of 5
1
I.
2
Plaintiff’s motion to amend the complaint1 must be denied. This case is proceeding on the
MOTION TO AMEND
3
Fourth Amended Complaint, ECF No. 41, which was served on two defendants over two years
4
ago following remand from the Ninth Circuit. ECF Nos. 54, 55. Defendants answered in
5
October 2021. ECF No. 73. Discovery has closed, and defendants have moved for summary
6
judgment. ECF No. 135. Plaintiff seeks to now add as defendants “every judge” and “all Clerks”
7
in both divisions of the U.S. District Court for the Eastern District of California, ECF No. 138 at
8
2, and various elected and appointed officials including the President, the Governor, and the Chief
9
Justice of the United States Supreme Court, id. at 5.
10
Plaintiff’s opportunity to amend as a matter of course has long since passed. See Fed. R.
11
Civ. P. 15(a)(1). Accordingly, amendment is permitted only with the opposing party’s written
12
consent or with leave of court. Fed. R. Civ. P. 15(a)(2). Defendants do not consent to
13
amendment. See ECF No. 141 (opposition). Leave of court is appropriate only when justice
14
requires amendment, Fed. R. Civ. P. 15(a)(2), and that is manifestly not the case here.
15
“Liberality in granting a plaintiff leave to amend is subject to the qualification that the
16
amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not
17
futile. Additionally, the district court may consider the factor of undue delay.” Bowles v. Reade,
18
198 F.3d 752, 757-58 (9th Cir. 1999) (citations omitted). Here these factors all weigh against
19
amendment. Plaintiff has provided no legal or factual basis for expanding the case at this late
20
date to include numerous additional defendants, most of whom are immune from suit in any
21
event. None of the defendants identified in the motion to amend can plausibly be liable for the
22
alleged conduct of defendants Bishop and Brockway, and that is the only live issue in this case.
23
Plaintiff has proffered no new factual allegations and no new claims; any such allegations or
24
claims against the proposed defendants would almost certainly be frivolous. For these reasons,
25
plaintiff’s motion to amend the complaint will be denied.
26
////
27
28
1
See ECF No. 138 at 2 (“Motion One”), 5 (“Motion Six”).
2
Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 3 of 5
1
II.
2
Plaintiff’s motion requesting that the undersigned disqualify herself (see ECF No. 138 at
MOTION TO DISQUALIFY JUDGES
3
2-3) must also be denied. 2 The Ninth Circuit has held repeatedly that the challenged judge
4
h[er]self should rule on the legal sufficiency of a recusal motion in the first instance. United
5
States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986). “Whenever a party to any proceeding in a
6
district court makes and files a timely and sufficient affidavit that the judge before whom the
7
matter is pending has a personal bias or prejudice either against him or in favor of any adverse
8
party, such judge shall proceed no further therein.” 28 U.S.C. § 144. “Any justice, judge, or
9
magistrate judge of the United States shall disqualify himself in any proceeding in which his
10
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Under both recusal statutes,
11
the substantive standard is “whether a reasonable person with knowledge of all the facts would
12
conclude that the judge’s impartiality might reasonably be questioned.” Studley, 783 F.2d at 939
13
(quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (internal quotations omitted)).
14
In support of his request, plaintiff alleges that the undersigned is corrupt, biased, and has
15
engaged in “collusion, misconduct, professional negligence, [and] perjury.” ECF No. 138 at 2.
16
Plaintiff also alleges that the undersigned is romantically involved with counsel for the
17
defendants. Id. However, plaintiff provides no support whatsoever for any of his allegations. Id.
18
“Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual
19
matters” are insufficient to support a successful recusal motion. Clemens v. United States District
20
Court for Central District of California, 428 F.3d 1175, 1178 (9th Cir 2005) (per curiam) (internal
21
quotation marks omitted). Because plaintiff’s allegations are wholly unsupported, his motion for
22
disqualification must be denied.
23
III. PLAINTIFF’S “OPPOSITION” TO MOTION FOR SUMMARY JUDGMENT
24
The court has already found that plaintiff’s conclusory statement of opposition is
25
insufficient to oppose defendants’ motion for summary judgment. ECF No. 145 at 3-4. Both
26
plaintiff’s statement of opposition, ECF No. 138 at 3, and defendant’s reply to it, ECF No. 141,
27
28
2
Plaintiff also requests that judges other than the undersigned disqualify themselves. See ECF
No. 138 at 2. However, none of those judges are assigned to this case.
3
Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 4 of 5
1
will be disregarded. After plaintiff has filed a new opposition to defendants’ motion for summary
2
judgment as ordered below, defendants may file a reply.
3
IV. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
4
The motion at ECF No. 138 purports to seek summary judgment in plaintiff’s favor, id. at
5
4 (“Motion Five”), but it does not comply with any of the requirements for a summary judgment
6
motion under Fed. R. Civ. P. 56 and Local Rule 260. Plaintiff has since filed a freestanding
7
motion for summary judgment, ECF No. 144. The undersigned construes the motion at ECF
8
No.144 as superseding the motion at ECF No. 138. The motion at ECF No. 144 will be addressed
9
in due course.
10
V.
11
Plaintiff seeks an extension of time to respond to the court’s June 7 order directing him to
PLAINTIFF’S MOTION FOR AN EXTENSION OF TIME
12
submit a completed Motion to Proceed IFP by a non-prisoner and to file a proper response to
13
defendants’ motion for summary judgment. ECF No. 148. At the outset, the court notes that this
14
motion appears to be a copy of an extension of time request that plaintiff filed in January of 2023
15
in the California Court of Appeal for the Fifth District. See id. at 1 (state appellate court stamp on
16
left side of page; writing on bottom of page one; plaintiff’s request for a sixty-day extension of
17
time until 3/20/23). Plaintiff states in part that he is in a transitional living situation, that his
18
disability prevents him from using a bus for transportation to get to a law library, and that he
19
needs additional time to do research. Id.
20
The court cannot determine whether the impediments asserted still exist and prevent
21
plaintiff from timely responding to this court’s June 2023 order. However, given plaintiff’s pro
22
se status, his post-prison placement in a new environment in which access to a law library may
23
not be as readily accessible to him, and in the interests of justice, the court will grant plaintiff an
24
additional thirty days to file the non-prisoner in forma pauperis application and an opposition to
25
defendants’ summary judgment motion.
26
////
27
////
28
////
4
Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 5 of 5
1
CONCLUSION
2
Accordingly, IT IS HEREBY ORDERED that:
3
1. Plaintiff’s omnibus motion at ECF No. 138 is DENIED;
4
2. Plaintiff’s motion for an extension of time, ECF No. 148, is GRANTED IN PART;
5
3. The Clerk of Court shall send plaintiff copies of the following:
6
a. This court’s application to proceed in forma pauperis for a non-prisoner;
7
b. The Rand Notice included in defendants’ motion for summary judgment (see ECF
8
No. 135-1);
9
c. Federal Rule of Civil Procedure 56; and
10
11
d. Local Rules 230 and 260.
4. Within thirty days from the date of this order, plaintiff shall file:
12
a. The completed application to proceed in forma pauperis by a non-prisoner, and
13
b. Either an opposition to defendants’ motion for summary judgment or a statement
14
15
of non-opposition to the motion which complies with the Rand Notice and federal and local rules.
Plaintiff is cautioned that failure to comply with the court’s order within the time
16
allotted may result in a recommendation that this action be dismissed. Plaintiff is further
17
cautioned that absent exigent circumstances, no additional extensions of time will be
18
granted.
19
DATED: August 16, 2023
20
21
22
23
24
25
26
27
28
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?