Ha v. Celaya et al

Filing 4

ORDER DENYING PLAINTIFF'S REQUEST TO FILE SUPPLEMENTAL PLEADING. Signed by Judge William Alsup on 11/13/2012. (whasec, COURT STAFF) (Filed on 11/13/2012) (Additional attachment(s) added on 11/13/2012: # 1 Certificate/Proof of Service) (dtS, COURT STAFF).

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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HUNG HA,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 12-80244 MISC WHA

v.
MITCH CELAYA, IN HIS OFFICIAL
CAPACITY AS CHIEF OF UCPD;
SIMARTINEZ, BADGE #56, UCPD;
AND DOES,

ORDER DENYING PLAINTIFF’S
REQUEST TO FILE
SUPPLEMENTAL PLEADING

Defendants.
/

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INTRODUCTION

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In this Section 1983 action, pro se plaintiff’s frivolous complaint was dismissed without

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leave to amend on pre-filing review. Plaintiff now seeks leave to file a supplemental pleading.

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For the reasons stated below, plaintiff’s request is DENIED.
STATEMENT

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Plaintiff has been determined to be a vexatious litigant in this district. Pursuant to the

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pre-filing review order issued by Magistrate Judge Larson on July 29, 2010, “any [] pro se filing

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by [p]laintiff in this district shall be subject to pre-filing review by a judge of this Court.”

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Our court of appeals affirmed the pre-filing review order (Hung Ha v. United States Attorney

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General, et al., No. 10-16506).

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Plaintiff sought to file a complaint alleging Section 1983 violations against defendants
for issuing plaintiff a seven-day stay-away order from the Recreational Sports Facility at

undersigned judge conducted a review of plaintiff’s complaint. Plaintiff’s complaint was found

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to be very similar to an earlier complaint he filed against various U.C. Berkeley police officers

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and employees who work at the university’s Recreational Sports Facility. In that action, plaintiff

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alleged violations of his constitutional rights in expelling him from the facility and revoking his

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membership privileges (Hung Ha v. Sweet B., et al., No. 09-1392). Upon review of plaintiff’s

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application to proceed in forma pauperis, Judge Saundra Brown Armstrong dismissed the

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complaint for failure to state a claim, finding that plaintiff had not alleged a constitutional

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violation and could not establish liability against the officers. Similarly, in the current action,

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the October 22 order determined that plaintiff’s complaint was frivolous and failed to state a

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For the Northern District of California

University of California Berkeley. Pursuant to Judge Larson’s pre-filing review order, the

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United States District Court

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claim. Consequently, plaintiff’s complaint was denied and the Clerk was ordered to close the

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file (Dkt. No. 3).

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Despite the order, on November 1, plaintiff mailed to the Clerk a document entitled

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“Application For Leave To File Supplemental Pleading; [Proposed [ [sic] Supplemental

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Pleading.” Appended to the application was plaintiff’s verified affidavit containing allegations

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of an encounter between plaintiff and “Doe # 1” and other U.C. Berkeley police officers.

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Briefly, the affidavit alleges that on October 31, plaintiff encountered Doe #1. After a brief

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exchange of words with Doe #1, plaintiff was “accosted” by two police officers. The police

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officers allegedly directed plaintiff to disclose his personal information for purposes of creating

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a “contact card,” in addition to requesting him to show identification and conducting a limited

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search. The police officers then allowed plaintiff to “go about [his] business” and enter the

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Recreational Sports Facility. Plaintiff alleges that “Doe #1 was attempting to repeat his success

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of Oct. 5, when UCPD officers issued [sic] summarily a stay away order, and immediately

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expelled [him] out of [the recreation center]” (Affidavit at 2).

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ANALYSIS
The October 22 order rejected plaintiff’s complaint as frivolous upon pre-filing review

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and consequently closed the file (Dkt. No. 3). Despite that order, plaintiff has submitted an

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“Application for Leave to File Supplemental Pleading.” Plaintiff’s submission is not clear
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regarding the relief sought or what procedural rule, if any, provides for such relief.

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Nevertheless, because pro se pleadings are liberally construed, this order generously construes

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the application as a request for leave to file a supplemental pleading pursuant to FRCP 15(d).

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See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990) (citing Christensen v.

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C.I.R., 786 F.2d 1382, 1384–85 (9th Cir. 1986).

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REQUEST FOR DISQUALIFICATION.

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As an initial matter, plaintiff seeks to disqualify the undersigned judge pursuant

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to 28 U.S.C. 455(a), which provides that “[a]ny justice, judge, or magistrate judge of the

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United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” In analyzing a Section 455(a) disqualification request, the court

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For the Northern District of California

United States District Court

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applies an objective test: 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. Clemens v. United States

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District Court for Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005) (per curiam).

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The question is “whether a reasonable person perceives a significant risk that the judge will

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resolve the case on a basis other than the merits.” Ibid. (quoting In re Mason, 916 F.2d 384,

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385 (7th Cir. 1990)).

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As an initial matter, plaintiff’s request for recusal is moot, as this action has been

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dismissed. That aside, plaintiff has not presented grounds for recusal. In the verified affidavit

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accompanying the application, plaintiff states that he has “stud[ied], primarily, [his] cases,

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studying the orders, judgments, behavior of judicial officers” (Mot. at 4). Based on those

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studies, plaintiff notes the “[r]ampant abuse of authority and power by judicial officers,”

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including the undersigned. Ibid. Beyond these general and conclusory assertions, plaintiff fails

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to offer any facts demonstrating that recusal under 28 U.S.C. 455(a) is necessary or appropriate.

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Therefore, recusal is DENIED.

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2.

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Pursuant to FRCP 15(d):

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REQUEST FOR LEAVE TO SUPPLEMENT PLEADING.

[O]n motion and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting out any
transaction, occurrence, or event that happened after the date
of the pleading to be supplemented. The court may permit
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supplementation even though the original pleading is defective in
stating a claim or defense.

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The goal of the rule governing supplemental pleading is to promote judicial efficiency.
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Planned Parenthood of Southern Arizona v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (citing
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Keith v. Volpe, 858 F.2d 467, 473 (9th Cir. 1988)). Thus, it is well established that where a
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supplemental pleading would be futile, and could not itself survive a motion to dismiss, it is
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within the district court’s discretion to refuse leave to supplement. See Klamath-Lake
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Pharmaceutical Ass’n v. Klamath Med. Serv. Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983).
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Because plaintiff’s proposed supplemental pleading does not include any allegations
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upon which he is able to state a claim for relief, permitting supplementation will not serve to
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to the facts pled in the prior complaint, and plaintiff’s previous complaint failed to allege a
For the Northern District of California

United States District Court

promote judicial efficiency. The allegations within the proposed pleading are synonymous
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legitimate constitutional violation. For example, plaintiff alleged that the seven-day stay-away
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order issued by Officer Simartinez violated his freedom of speech rights guaranteed by the First
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Amendment. Contrary to plaintiff’s argument, “rights to be on campus, UCB, such as research
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for academic an educational purposes” does not involve an actionable First Amendment claim.
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Similarly, plaintiff’s Fourteenth Amendment claims fail because plaintiff failed to allege either:
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(1) a constitutionally protected liberty interest giving rise to a due process claim; or (2) a valid
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protected class to which he belongs, giving rise to an equal protection claim. Finally, plaintiff’s
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Fourth Amendment claim failed because the officers’ conduct was reasonable under the
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circumstances. Plaintiff’s proposed supplementation fares no better. Plaintiff’s proposed
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pleading does not allege any set of facts in support of his Section 1983 claim which would entitle
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him to relief. Accordingly, this order finds that plaintiff’s complaint remains frivolous, and,
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once again, denies plaintiff leave to file a complaint.
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CONCLUSION
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For the reasons stated above, plaintiff’s request for leave to file a supplemental pleading
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is DENIED WITHOUT LEAVE TO AMEND. The next stop for Mr. Ha is the United States Court
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of Appeals for the Ninth Circuit. Plaintiff is requested to please refrain from filing letters with

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this Court.

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IT IS SO ORDERED.

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Dated: November 13, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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