(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
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GARY PAUL SMITH,

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No. 2:21-cv-1992 DJC AC P

Plaintiff,
v.

ORDER

MUNICIPALITY OF FRESNO COUNTY,
et al.,
Defendants.

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Plaintiff, a former state prisoner proceeding pro se, seeks relief under 42 U.S.C. § 1983.

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Before the court are plaintiff’s omnibus motion to amend the complaint and to disqualify judges,

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which also includes a conclusory statement of opposition to defendants’ pending summary

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judgment motion and purports to seek summary judgment in plaintiff’s favor. ECF No. 138.

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Plaintiff has also filed a motion for an extension of time to file: (1) an in forma pauperis

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application for a non-prisoner, and (2) an opposition to defendants’ motion for summary

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judgment. ECF No. 148.

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For the reasons stated below, plaintiff’s motion to amend the complaint and to disqualify

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judges will be denied. The statement of opposition to defendants’ summary judgment motion will

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be disregarded, as will defendants’ reply to it, and plaintiff will be provided additional time to

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submit a proper opposition.
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Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 2 of 5
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I.

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Plaintiff’s motion to amend the complaint1 must be denied. This case is proceeding on the

MOTION TO AMEND

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Fourth Amended Complaint, ECF No. 41, which was served on two defendants over two years

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ago following remand from the Ninth Circuit. ECF Nos. 54, 55. Defendants answered in

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October 2021. ECF No. 73. Discovery has closed, and defendants have moved for summary

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judgment. ECF No. 135. Plaintiff seeks to now add as defendants “every judge” and “all Clerks”

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in both divisions of the U.S. District Court for the Eastern District of California, ECF No. 138 at

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2, and various elected and appointed officials including the President, the Governor, and the Chief

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Justice of the United States Supreme Court, id. at 5.

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Plaintiff’s opportunity to amend as a matter of course has long since passed. See Fed. R.

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Civ. P. 15(a)(1). Accordingly, amendment is permitted only with the opposing party’s written

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consent or with leave of court. Fed. R. Civ. P. 15(a)(2). Defendants do not consent to

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amendment. See ECF No. 141 (opposition). Leave of court is appropriate only when justice

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requires amendment, Fed. R. Civ. P. 15(a)(2), and that is manifestly not the case here.

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“Liberality in granting a plaintiff leave to amend is subject to the qualification that the

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amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not

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futile. Additionally, the district court may consider the factor of undue delay.” Bowles v. Reade,

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198 F.3d 752, 757-58 (9th Cir. 1999) (citations omitted). Here these factors all weigh against

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amendment. Plaintiff has provided no legal or factual basis for expanding the case at this late

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date to include numerous additional defendants, most of whom are immune from suit in any

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event. None of the defendants identified in the motion to amend can plausibly be liable for the

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alleged conduct of defendants Bishop and Brockway, and that is the only live issue in this case.

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Plaintiff has proffered no new factual allegations and no new claims; any such allegations or

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claims against the proposed defendants would almost certainly be frivolous. For these reasons,

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plaintiff’s motion to amend the complaint will be denied.

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See ECF No. 138 at 2 (“Motion One”), 5 (“Motion Six”).
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Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 3 of 5
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II.

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Plaintiff’s motion requesting that the undersigned disqualify herself (see ECF No. 138 at

MOTION TO DISQUALIFY JUDGES

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2-3) must also be denied. 2 The Ninth Circuit has held repeatedly that the challenged judge

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h[er]self should rule on the legal sufficiency of a recusal motion in the first instance. United

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States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986). “Whenever a party to any proceeding in a

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district court makes and files a timely and sufficient affidavit that the judge before whom the

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matter is pending has a personal bias or prejudice either against him or in favor of any adverse

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party, such judge shall proceed no further therein.” 28 U.S.C. § 144. “Any justice, judge, or

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magistrate judge of the United States shall disqualify himself in any proceeding in which his

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impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Under both recusal statutes,

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the substantive standard is “whether a reasonable person with knowledge of all the facts would

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conclude that the judge’s impartiality might reasonably be questioned.” Studley, 783 F.2d at 939

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(quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (internal quotations omitted)).

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In support of his request, plaintiff alleges that the undersigned is corrupt, biased, and has

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engaged in “collusion, misconduct, professional negligence, [and] perjury.” ECF No. 138 at 2.

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Plaintiff also alleges that the undersigned is romantically involved with counsel for the

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defendants. Id. However, plaintiff provides no support whatsoever for any of his allegations. Id.

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“Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual

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matters” are insufficient to support a successful recusal motion. Clemens v. United States District

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Court for Central District of California, 428 F.3d 1175, 1178 (9th Cir 2005) (per curiam) (internal

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quotation marks omitted). Because plaintiff’s allegations are wholly unsupported, his motion for

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disqualification must be denied.

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III. PLAINTIFF’S “OPPOSITION” TO MOTION FOR SUMMARY JUDGMENT

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The court has already found that plaintiff’s conclusory statement of opposition is

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insufficient to oppose defendants’ motion for summary judgment. ECF No. 145 at 3-4. Both

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plaintiff’s statement of opposition, ECF No. 138 at 3, and defendant’s reply to it, ECF No. 141,

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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.
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Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 4 of 5
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will be disregarded. After plaintiff has filed a new opposition to defendants’ motion for summary

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judgment as ordered below, defendants may file a reply.

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IV. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

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The motion at ECF No. 138 purports to seek summary judgment in plaintiff’s favor, id. at

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4 (“Motion Five”), but it does not comply with any of the requirements for a summary judgment

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motion under Fed. R. Civ. P. 56 and Local Rule 260. Plaintiff has since filed a freestanding

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motion for summary judgment, ECF No. 144. The undersigned construes the motion at ECF

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No.144 as superseding the motion at ECF No. 138. The motion at ECF No. 144 will be addressed

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in due course.

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V.

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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

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submit a completed Motion to Proceed IFP by a non-prisoner and to file a proper response to

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defendants’ motion for summary judgment. ECF No. 148. At the outset, the court notes that this

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motion appears to be a copy of an extension of time request that plaintiff filed in January of 2023

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in the California Court of Appeal for the Fifth District. See id. at 1 (state appellate court stamp on

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left side of page; writing on bottom of page one; plaintiff’s request for a sixty-day extension of

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time until 3/20/23). Plaintiff states in part that he is in a transitional living situation, that his

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disability prevents him from using a bus for transportation to get to a law library, and that he

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needs additional time to do research. Id.

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The court cannot determine whether the impediments asserted still exist and prevent

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plaintiff from timely responding to this court’s June 2023 order. However, given plaintiff’s pro

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se status, his post-prison placement in a new environment in which access to a law library may

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not be as readily accessible to him, and in the interests of justice, the court will grant plaintiff an

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additional thirty days to file the non-prisoner in forma pauperis application and an opposition to

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defendants’ summary judgment motion.

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Case 2:21-cv-01992-DJC-AC Document 149 Filed 08/16/23 Page 5 of 5
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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s omnibus motion at ECF No. 138 is DENIED;

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2. Plaintiff’s motion for an extension of time, ECF No. 148, is GRANTED IN PART;

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3. The Clerk of Court shall send plaintiff copies of the following:

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a. This court’s application to proceed in forma pauperis for a non-prisoner;

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b. The Rand Notice included in defendants’ motion for summary judgment (see ECF

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No. 135-1);

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c. Federal Rule of Civil Procedure 56; and

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d. Local Rules 230 and 260.
4. Within thirty days from the date of this order, plaintiff shall file:

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a. The completed application to proceed in forma pauperis by a non-prisoner, and

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b. Either an opposition to defendants’ motion for summary judgment or a statement

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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

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allotted may result in a recommendation that this action be dismissed. Plaintiff is further

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cautioned that absent exigent circumstances, no additional extensions of time will be

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granted.

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DATED: August 16, 2023

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