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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*E-Filed 3/12/14*
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

United States District Court
For the Northern District of California

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JULIUS ROY BRAGG,
Plaintiff,

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ORDER DENYING MOTION TO
DISQUALIFY;

v.

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No. C 10-4695 RS (PR)

ARNOLD SCHWARZENEGGER, et al.,

ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

Defendants.

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/

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INTRODUCTION

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This Court granted defendants’ summary judgment motion on plaintiff’s Eighth

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Amendment claims, and directed plaintiff to file an amended complaint concerning his

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claims under the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12132. He filed an

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amended complaint, a motion to disqualify the presiding judge, and a motion for summary

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judgment. The Court addresses these filings below.

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I.

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Motion to Disqualify
Plaintiff moves to disqualify the presiding judge in this matter on grounds that he is

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prejudiced and biased against him, as evidenced by the judge’s failure to rule in his favor on

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his motions and requests. (Docket No. 67.) A party may move to disqualify, or recuse, a

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No. C 10-4695 RS (PR)
ORDER DISMISSING COMPLAINT

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judge from presiding in a given case. Motions to disqualify fall under two statutory

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provisions, 28 U.S.C. § 144 and 28 U.S.C. § 455. Section 144 provides for recusal where a

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party files a timely and sufficient affidavit averring that the judge before whom the matter is

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pending has a personal bias or prejudice either against the party or in favor of an adverse

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party, and setting forth the facts and reasons for such belief. See 28 U.S.C. § 144. Similarly,

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§ 455 requires a judge to disqualify himself “in any proceeding in which his impartiality

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might reasonably be questioned,” 28 U.S.C. § 455(a), including where the judge “has a

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personal bias or prejudice concerning a party,” id. § 455(b)(1).

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A judge finding a § 144 motion timely and the affidavits legally sufficient must

United States District Court
For the Northern District of California

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proceed no further and another judge must be assigned to hear the matter. United States v.

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Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Where the affidavit is not legally sufficient,

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however, the judge at whom the motion is directed may determine the matter. See id. at 868

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(holding judge challenged under § 144 properly heard and denied motion where affidavit not

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legally sufficient).

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The substantive test for personal bias or prejudice is identical under §§ 144 and 455.

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See Sibla, 624 F.2d at 868. Specifically, under both statutes recusal is appropriate where “a

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

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impartiality might reasonably be questioned.” Yagman v. Republic Ins., 987 F.2d 622,

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626 (9th Cir. 1993) (citation omitted). Consequently, an affidavit filed under § 144 will raise

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a question concerning recusal under §§ 455(a) and (b)(1) as well. Sibla, 624 F.2d at 867.

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Here, as noted, plaintiff moves to disqualify the undersigned on the ground of

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prejudice and bias. Merely ruling against plaintiff is not sufficient to show prejudice or bias,

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however. See Liteky v. United States, 510 U.S. 540, 555 (1994) (holding judicial rulings on

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basis of facts introduced or events occurring in course of judicial proceedings “almost never”

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provide grounds for recusal); Sibla, 624 F.2d at 868 (holding affidavit not legally sufficient

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unless it alleges facts demonstrating bias or prejudice that “stems from an extrajudicial

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source”). In sum, plaintiff’s allegations categorically fail to establish any basis, under either

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No. C 10-4695 RS (PR)
ORDER DISMISSING COMPLAINT

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§ 144 or

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questioned herein, and, consequently, are insufficient as a matter of law. Accordingly,

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plaintiff’s motion to disqualify is DENIED.

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II.

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§ 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

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seeks redress from a governmental entity or officer or employee of a governmental entity.

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See 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and

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dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may

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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

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§ 1915A(b)(1),(2). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica

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Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).

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A “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

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to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)

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(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

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plausibility when the plaintiff pleads factual content that allows the court to draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting

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Twombly, 550 U.S. at 556). Furthermore, a court “is not required to accept legal conclusions

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cast in the form of factual allegations if those conclusions cannot reasonably be drawn from

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the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754–55 (9th Cir. 1994).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and

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(2) that the alleged violation was committed by a person acting under the color of state law.

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See West v. Atkins, 487 U.S. 42, 48 (1988).

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Plaintiff’s amended complaint lacks any statement of his claims, and says only “See

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Attached.” The Court assumes that this attachment is his contemporaneously-filed motion

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for summary judgment (Docket No. 66). Because this filing is construed as part of the

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complaint, the motion for summary judgment is DENIED without prejudice. Broadly

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No. C 10-4695 RS (PR)
ORDER DISMISSING COMPLAINT

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construing plaintiff’s allegations, he claims that his jailors and medical staff at Pelican Bay

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State Prison refused to provide adequate medical care to treat his disability, a violation of the

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ADA.

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Section 505 of the Rehabilitation Act, 29 U.S.C. § 794(a), which is subsumed under

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the ADA, 42 U.S.C. § 12132, provides that “[n]o otherwise qualified individual with a

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disability, be excluded from the participation in, be denied the benefits of, or be subjected

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to discrimination under any program or activity receiving federal financial assistance.” The

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elements of a claim under the Act are that: (1) the plaintiff is a handicapped person under the

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Act; (2) he is otherwise qualified; (3) the relevant program receives federal financial

United States District Court
For the Northern District of California

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assistance; and (4) the defendants impermissibly discriminated against him on the basis of

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the handicap. See Bonner v. Lewis, 857 F.2d 559, 562–63 (9th Cir. 1988).

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The amended complaint fails to state a claim under the ADA, which prohibits

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discrimination because of a disability, but not, as plaintiff alleges, inadequate treatment for a

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disability. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2005).

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Accordingly, the amended complaint is DISMISSED with leave to amend. Plaintiff shall file

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an amended complaint on or before May 1, 2014. The third amended complaint1 must

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include the caption and civil case number used in this order (13-4695 RS (PR)) and the

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words THIRD AMENDED COMPLAINT on the first page. Because an amended complaint

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completely replaces the previous complaints, plaintiff must include in his amended complaint

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all the claims he wishes to present and all of the defendants he wishes to sue. See Ferdik v.

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Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). Plaintiff may not incorporate material from

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the prior complaint by reference. Failure to file an amended complaint in accordance with

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this order will result in dismissal of this action without further notice to plaintiff.

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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.
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No. C 10-4695 RS (PR)
ORDER DISMISSING COMPLAINT

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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the Court

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informed of any change of address by filing a separate paper with the clerk headed “Notice

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of Change of Address.” He must comply with the Court’s orders in a timely fashion or ask

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for an extension of time to do so. Failure to comply may result in the dismissal

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of this action pursuant to Federal Rule of Civil Procedure 41(b).

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Defendants’ motion to strike (Docket No. 70) is DENIED as moot. The Clerk shall

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terminate Docket Nos. 66, 67, and 70.

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IT IS SO ORDERED.

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DATED: March 12, 2014
RICHARD SEEBORG
United States District Judge

United States District Court
For the Northern District of California

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No. C 10-4695 RS (PR)
ORDER DISMISSING COMPLAINT