Bragg v. Schwarzenegger et al

Filing 80

ORDER DENYING MOTION TO DISQUALIFY; ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND. Signed by Judge Richard Seeborg on 3/12/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 3/12/2014)

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1 2 *E-Filed 3/12/14* 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION United States District Court For the Northern District of California 10 11 12 JULIUS ROY BRAGG, Plaintiff, 13 ORDER DENYING MOTION TO DISQUALIFY; v. 14 15 No. C 10-4695 RS (PR) ARNOLD SCHWARZENEGGER, et al., ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND Defendants. 16 / 17 18 INTRODUCTION 19 This Court granted defendants’ summary judgment motion on plaintiff’s Eighth 20 Amendment claims, and directed plaintiff to file an amended complaint concerning his 21 claims under the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12132. He filed an 22 amended complaint, a motion to disqualify the presiding judge, and a motion for summary 23 judgment. The Court addresses these filings below. 24 I. 25 Motion to Disqualify Plaintiff moves to disqualify the presiding judge in this matter on grounds that he is 26 prejudiced and biased against him, as evidenced by the judge’s failure to rule in his favor on 27 his motions and requests. (Docket No. 67.) A party may move to disqualify, or recuse, a 28 No. C 10-4695 RS (PR) ORDER DISMISSING COMPLAINT 1 judge from presiding in a given case. Motions to disqualify fall under two statutory 2 provisions, 28 U.S.C. § 144 and 28 U.S.C. § 455. Section 144 provides for recusal where a 3 party files a timely and sufficient affidavit averring that the judge before whom the matter is 4 pending has a personal bias or prejudice either against the party or in favor of an adverse 5 party, and setting forth the facts and reasons for such belief. See 28 U.S.C. § 144. Similarly, 6 § 455 requires a judge to disqualify himself “in any proceeding in which his impartiality 7 might reasonably be questioned,” 28 U.S.C. § 455(a), including where the judge “has a 8 personal bias or prejudice concerning a party,” id. § 455(b)(1). 9 A judge finding a § 144 motion timely and the affidavits legally sufficient must United States District Court For the Northern District of California 10 proceed no further and another judge must be assigned to hear the matter. United States v. 11 Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Where the affidavit is not legally sufficient, 12 however, the judge at whom the motion is directed may determine the matter. See id. at 868 13 (holding judge challenged under § 144 properly heard and denied motion where affidavit not 14 legally sufficient). 15 The substantive test for personal bias or prejudice is identical under §§ 144 and 455. 16 See Sibla, 624 F.2d at 868. Specifically, under both statutes recusal is appropriate where “a 17 reasonable person with knowledge of all the facts would conclude that the judge’s 18 impartiality might reasonably be questioned.” Yagman v. Republic Ins., 987 F.2d 622, 19 626 (9th Cir. 1993) (citation omitted). Consequently, an affidavit filed under § 144 will raise 20 a question concerning recusal under §§ 455(a) and (b)(1) as well. Sibla, 624 F.2d at 867. 21 Here, as noted, plaintiff moves to disqualify the undersigned on the ground of 22 prejudice and bias. Merely ruling against plaintiff is not sufficient to show prejudice or bias, 23 however. See Liteky v. United States, 510 U.S. 540, 555 (1994) (holding judicial rulings on 24 basis of facts introduced or events occurring in course of judicial proceedings “almost never” 25 provide grounds for recusal); Sibla, 624 F.2d at 868 (holding affidavit not legally sufficient 26 unless it alleges facts demonstrating bias or prejudice that “stems from an extrajudicial 27 source”). In sum, plaintiff’s allegations categorically fail to establish any basis, under either 28 2 No. C 10-4695 RS (PR) ORDER DISMISSING COMPLAINT 1 § 144 or 2 questioned herein, and, consequently, are insufficient as a matter of law. Accordingly, 3 plaintiff’s motion to disqualify is DENIED. 4 II. 5 § 455, for a determination that the Court’s impartiality might reasonably be Review of Amended Complaint A federal court must conduct a preliminary screening in any case in which a prisoner 6 seeks redress from a governmental entity or officer or employee of a governmental entity. 7 See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and 8 dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may 9 be granted or seek monetary relief from a defendant who is immune from such relief. See id. United States District Court For the Northern District of California 10 § 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica 11 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). 12 A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim 13 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) 14 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial 15 plausibility when the plaintiff pleads factual content that allows the court to draw the 16 reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting 17 Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions 18 cast in the form of factual allegations if those conclusions cannot reasonably be drawn from 19 the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994). 20 To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: 21 (1) that a right secured by the Constitution or laws of the United States was violated, and 22 (2) that the alleged violation was committed by a person acting under the color of state law. 23 See West v. Atkins, 487 U.S. 42, 48 (1988). 24 Plaintiff’s amended complaint lacks any statement of his claims, and says only “See 25 Attached.” The Court assumes that this attachment is his contemporaneously-filed motion 26 for summary judgment (Docket No. 66). Because this filing is construed as part of the 27 complaint, the motion for summary judgment is DENIED without prejudice. Broadly 28 3 No. C 10-4695 RS (PR) ORDER DISMISSING COMPLAINT 1 construing plaintiff’s allegations, he claims that his jailors and medical staff at Pelican Bay 2 State Prison refused to provide adequate medical care to treat his disability, a violation of the 3 ADA. 4 Section 505 of the Rehabilitation Act, 29 U.S.C. § 794(a), which is subsumed under 5 the ADA, 42 U.S.C. § 12132, provides that “[n]o otherwise qualified individual with a 6 disability, be excluded from the participation in, be denied the benefits of, or be subjected 7 to discrimination under any program or activity receiving federal financial assistance.” The 8 elements of a claim under the Act are that: (1) the plaintiff is a handicapped person under the 9 Act; (2) he is otherwise qualified; (3) the relevant program receives federal financial United States District Court For the Northern District of California 10 assistance; and (4) the defendants impermissibly discriminated against him on the basis of 11 the handicap. See Bonner v. Lewis, 857 F.2d 559, 562–63 (9th Cir. 1988). 12 The amended complaint fails to state a claim under the ADA, which prohibits 13 discrimination because of a disability, but not, as plaintiff alleges, inadequate treatment for a 14 disability. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2005). 15 Accordingly, the amended complaint is DISMISSED with leave to amend. Plaintiff shall file 16 an amended complaint on or before May 1, 2014. The third amended complaint1 must 17 include the caption and civil case number used in this order (13-4695 RS (PR)) and the 18 words THIRD AMENDED COMPLAINT on the first page. Because an amended complaint 19 completely replaces the previous complaints, plaintiff must include in his amended complaint 20 all the claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v. 21 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from 22 the prior complaint by reference. Failure to file an amended complaint in accordance with 23 this order will result in dismissal of this action without further notice to plaintiff. 24 25 26 27 28 1 Plaintiff filed a complaint (Docket No. 1), a first amended complaint (Docket No. 7), which was served on defendants, and the instant complaint (Docket No. 65), which was also titled as a first amended complaint. For purposes of clarity, plaintiff shall title his next amended complaint as the third amended complaint. 4 No. C 10-4695 RS (PR) ORDER DISMISSING COMPLAINT 1 It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court 2 informed of any change of address by filing a separate paper with the clerk headed “Notice 3 of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask 4 for an extension of time to do so. Failure to comply may result in the dismissal 5 of this action pursuant to Federal Rule of Civil Procedure 41(b). 6 Defendants’ motion to strike (Docket No. 70) is DENIED as moot. The Clerk shall 7 terminate Docket Nos. 66, 67, and 70. 8 IT IS SO ORDERED. 9 DATED: March 12, 2014 RICHARD SEEBORG United States District Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 No. C 10-4695 RS (PR) ORDER DISMISSING COMPLAINT

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