Magee v. Kwong et al

Filing 12

ORDER of Dismissal. Signed by Judge Edward M. Chen on 2/28/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 2/28/2012)

1
2
3
4
5

UNITED STATES DISTRICT Court

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

RUCHELL CINQUE MAGEE,

9

Plaintiff,

10

v.

ORDER OF DISMISSAL

11
For the Northern District of California

United States District Court

No. C-11-4071 EMC (pr)

WILLIAM KWONG; et al.,

12

Defendants.
___________________________________/

13
14

I.

15

INTRODUCTION

Ruchell Cinque Magee, a prisoner at California State Prison - Corcoran filed this pro se civil

16

rights action under 42 U.S.C. § 1983. He sought leave to proceed in forma pauperis pursuant to 28

17

U.S.C. § 1915. Magee was ordered to show cause why his in forma pauperis application should not

18

be denied under 28 U.S.C. § 1915(g) and the action should not be dismissed. This matter is now

19

before the Court for consideration of Magee's response to the order to show cause as well as a

20

habeas petition and his "Statement For Disqualification of Judge Edward M. Chen." The "Statement

21

For Disqualification" is construed to be a recusal motion, and must be addressed first.

22
23
24

II.
A.

DISCUSSION

Recusal Motion
Recusal is the process by which a federal judge may be disqualified from a given case.

25

Motions to recuse a district judge are governed by two statutes, 28 U.S.C. § 144 and § 455. Section

26

144 provides for recusal of the judge before whom a matter is pending upon the filing by a party of a

27

“sufficient affidavit that the judge . . . has a personal bias or prejudice either against him or in favor

28

of any adverse party.” Section 455 also provides grounds for disqualification, and requires a judge

1

to disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

2

See 28 U.S.C. § 455(a). As a federal judge is presumed to be impartial, a substantial burden is

3

imposed on the party claiming bias or prejudice to show that this is not the case. See United States

4

v. Zagari, 419 F. Supp. 494, 506 n.30 (N.D. Cal. 1976).

5

Magee's recusal motion does not meet the legal sufficiency requirement of § 144 because the

6

allegations of bias are conclusory and do not allege an extrajudicial basis for the alleged bias or

7

prejudice. See United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566-67 (9th Cir. 1995)

8

(affidavit inadequate when based on conclusory allegations of bias); Toth v. Trans World Airlines,

9

Inc., 862 F.2d 1381, 1387-88 (9th Cir. 1988) (district judge correctly rejected disqualification
motion as legally insufficient and had no duty to refer it to another judge because the alleged bias or

11
For the Northern District of California

United States District Court

10

prejudice did not arise from an extrajudicial source). For similar reasons, the motion is insufficient

12

to show bias under either § 455. It appears that Magee is alleging bias and prejudice based on the

13

undersigned's issuance of the order to show cause in this action and issuance of an order of transfer

14

in Magee v. Flores, Case No. C 11-1927 EMC. It is well-established that actions taken by a judge

15

during the normal course of the proceedings are not proper grounds for disqualification. See United

16

States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (judge properly denied motion for

17

disqualification based on his prior service as prosecutor and his actions during the proceedings

18

because neither ground required recusal); see also Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th

19

Cir. 1999) (court's adverse rulings are not an adequate basis for recusal). Magee also expresses

20

dissatisfaction with other judges in the Northern District, but the alleged acts or views of other

21

judges are not relevant to the recusal inquiry. Accordingly, the recusal motion is DENIED.

22

(Docket # 8.)

23

B.

24

The Habeas Petition
Although this action was commenced as a civil rights action under 42 U.S.C. § 1983, Magee

25

filed a petition for writ of habeas corpus after the Court issued the order to show cause on the in

26

forma pauperis application. The petition for writ of habeas corpus cannot be entertained within a

27

civil rights action; if it ever may proceed, it must be filed as a separate action.

28

2

1

Magee's petition for writ of habeas corpus seeks to challenge his 1975 conviction from the

2

Santa Clara County Superior Court. The Court denied Magee's petition for writ of habeas corpus

3

challenging that conviction in Magee v. Rowland, Case No. C 90-3618 DLJ on April 12, 1991. The

4

Court dismissed Magee's petition for writ of habeas corpus in Magee v. Marshall, Case No. C 93-

5

3637 DLJ on June 6, 1995, after respondent moved to dismiss the petition as an abuse of the writ. A

6

second or successive petition may not be filed in this Court unless Magee first obtains from the

7

United States Court of Appeals for the Ninth Circuit an order authorizing this Court to consider the

8

petition. See 28 U.S.C. § 2244(b)(3)(A). Magee has not obtained such an order from the Ninth

9

Circuit. The petition accordingly is DISMISSED without prejudice to Magee filing a new habeas
action if he ever obtains the necessary order from the Ninth Circuit.

11
For the Northern District of California

United States District Court

10

C.

The In Forma Pauperis Application

12

On January 26, 2012, the Court ordered Magee to show cause why the in forma pauperis

13

application should not be denied and this action should not be dismissed under § 1915(g), which

14

provides that a prisoner may not bring a civil action in forma pauperis "if the prisoner has, on 3 or

15

more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a

16

court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to

17

state a claim upon which relief may be granted, unless the prisoner is under imminent danger of

18

serious physical injury." 28 U.S.C. § 1915(g). In the order to show cause, the Court identified six

19

prior dismissals that appeared to count under § 1915(g).1

20

Magee failed to show that any of the prior dismissals could not be counted under § 1915(g).

21

He filed several documents complaining about various perceived inequities in the administration of

22

justice and his unsuccessful litigation efforts. He complained particularly about a pre-filing review

23

order that was entered on May 10, 1995 in Magee v. Marshall, Case No. C 93-3637 DLJ, and

24

vacated on May 2, 2005 in In re Ruchell Cinque Magee, Case No. C 05-80075 MISC VRW. His

25

arguments are misguided. The prefiling review order is irrelevant to the present inquiry because

26
27
1

28

The order to show cause also stated that Magee also could avoid dismissal by paying the
filing fee by the deadline. He did not pay the filing fee.

3

1

none of the dismissals listed in the order to show cause was dismissed under authority of the pre-

2

filing review order.

3

Notwithstanding the existence of three or more dismissals of actions as frivolous, malicious

4

or for failure to state a claim upon which relief may be granted, a prisoner-plaintiff may avoid

5

dismissal under § 1915(g) if he "is under imminent danger of serious physical injury." 28 U.S.C. §

6

1915(g). Whether the prisoner-plaintiff is under imminent danger is to be assessed as of the time of

7

filing the complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) ("Andrews

8

II"). The Court "should not make an overly detailed inquiry into whether the allegations qualify for

9

the exception." Id. at 1055. It is sufficient if the complaint "makes a plausible allegation that the
prisoner faced 'imminent danger of serious physical injury' at the time of filing." Id.; see, e.g., id. (in

11
For the Northern District of California

United States District Court

10

action for Eighth Amendment violation based on the threat prisoner faced from contagious diseases

12

in prison, allegation that plaintiff was at risk of contracting HIV or hepatitis C was sufficient to

13

bring his complaint within the imminent danger exception); id. at 1057 ("prisoner who alleges that

14

prison officials continue with a practice that has injured him or others similarly situated in the past

15

will satisfy the 'ongoing danger' standard and meet the imminence prong of the three-strikes

16

exception" even if prisoner had already contracted a contagious disease and complained of being

17

housed near prisoners with contagious diseases); cf. Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.

18

1998) (plaintiff sufficiently alleged ongoing danger where he repeatedly had been housed near

19

enemies, despite his protests, and where he filed his complaint very shortly after being attacked by

20

an enemy); Abdul-Akbar v. McKelvie, 239 F.3d 307, 315 n.1 (3d Cir. 2001) (while declining to reach

21

question of whether "imminent danger" encompasses an ongoing danger of serious physical injury,

22

noting that the plaintiff's allegations of past acts of physical harassment were not sufficiently

23

specific or related to support an inference of an ongoing danger); Medberry v. Butler, 185 F.3d

24

1189, 1193 (11th Cir. 1999) (no ongoing danger where plaintiff had been placed in administrative

25

segregation following physical assaults by fellow inmates and before he filed his complaint). "The

26

harm from some ongoing practices may be sufficiently obvious without showing a past injury

27

resulting from it. . . . [A]ssertions of imminent danger of less obviously injurious practices may be

28

rejected as overly speculative or fanciful, when they are supported by implausible or untrue

4

1

allegations that the ongoing practice has produced past harm." Andrews II, 493 F.3d at 1057 n.11.

2

The imminent danger must have a nexus to at least one of the plaintiff's claims. See Pettus v.

3

Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009); see generally Andrews II, 493 F.3d at 1056-57 &

4

n.11.

5

Here, Magee's complaint alleges two claims: (1) some defendants engaged in misconduct

6

(i.e., attempted to avoid service of process and improperly removed the case from state to federal

7

court) in a civil action he had filed, and (2) some defendants intercepted mail and thereby obstructed

8

grand jury proceedings that allegedly were investigating defendants' role in concealing a jury

9

acquittal and other evidence in Magee's 1975 criminal case. See Docket # 1.
With regard to the imminent danger exception in § 1915(g), Magee made several statements.

11
For the Northern District of California

United States District Court

10

He stated in his complaint that his placement in the C-facility of Corcoran Substance Abuse

12

Treatment Facility is "designed to force plaintiff into violence (killing or be killed) position." Id. at

13

4 (errors in source). In an "Ex Parte: Motion For Hearing On Imminent Endangerment Of Life"

14

filed with the complaint, Magee stated that his retention in the Corcoran prison put him in a "kill or

15

be killed" position against other dysfunctional inmates. Docket # 3, pp. 1-2. In his "Demand Show

16

Cause And Hearing On Imminent Endangerment On Life," after railing against the judiciary for nine

17

pages, Magee stated "[t]hese are imminent endangerment of life denying access to court tactics by

18

corrupted judges overstepping their judicial boundry overboard - in combination with retaliatory

19

transfer by within prison officials and the California attorney general. [¶] Complaint reflect

20

plaintiff held under inhuman conditions leading to high blood pressure with death threaten stroke

21

and heart attack effect." Docket # 7, p. 10 (errors in source). Magee's statements are not sufficient

22

to bring him within the imminent danger exception to § 1915(g). The alleged danger is not alleged

23

to be causally connected to either of the two claims in the complaint. Further it is not plausible that

24

the conditions he has identified – being "force[d] into violence" and having high blood pressure –

25

were caused by defendants' alleged misconduct in civil litigation and alleged interception of mail.

26

The complaint does not "reveal a nexus between the imminent danger it alleges and the claims it

27

asserts." Pettus, 554 F.3d at 298; see, e.g., id. at 299 (imminent danger requirement not satisfied

28

5

1

because the alleged dangerous prison conditions were not fairly traceable to defendants' alleged

2

actions in plaintiff's criminal case).

3

Magee has not paid the filing fee, has not shown that any of the prior dismissals cannot

4

properly be counted as dismissals under § 1915(g), and has not shown that he fits within the

5

"imminent danger" exception in § 1915(g). The Court finds that the six prior dismissals identified in

6

the order to show cause count as dismissals for purposes of § 1915(g). The in forma pauperis

7

application therefore is DENIED. (Docket # 2, # 10.)

8
9

(Docket # 3, # 11.) The Court has considered his written arguments in those applications, but will
not hold an oral hearing on the matter.

11
For the Northern District of California

United States District Court

10

Magee's applications for a hearing on the "imminent danger" exception are DENIED.

III.

CONCLUSION

12

In light of the denial of the in forma pauperis application, this action is DISMISSED

13

pursuant to 28 U.S.C. § 1915(g). The dismissal is without prejudice to Magee asserting his claims in

14

an action for which he pays the full filing fee at the time he files his complaint.

15

The Clerk shall close the file.

16
17

IT IS SO ORDERED.

18
19

Dated: February 28, 2012

20
_________________________
EDWARD M. CHEN
United States District Judge

21
22
23
24
25
26
27
28

6