Moye v. United States Government et al

Filing 10

ORDER of Dismissal. Signed by Judge Edward M. Chen on 12/20/2013. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 12/20/2013)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

MALINKA TACUMA WADE MOYE,

9

Plaintiff,
v.

11
For the Northern District of California

United States District Court

10

ORDER OF DISMISSAL

UNITED STATES GOVERNMENT; et al.,

12

No. C-13-2173 EMC (pr)

Defendants.
____________________________________/

13
14

Malinka Tacuma Wade Moye, an inmate at the San Francisco County Jail, filed this pro se

15

civil rights action under 42 U.S.C. § 1983. The Court reviewed the complaint and dismissed it with

16

leave to amend to cure several specific deficiencies. Plaintiff then filed a motion to recuse the

17

undersigned and an amended complaint.

18

A.

Recusal Motion

19

Plaintiff’s motion to recuse the undersigned is largely incomprehensible, but appears to argue

20

that the undersigned should recuse himself because he has had social communications with, and may

21

have had his picture taken with, California Supreme Court Chief Justice Tani Cantil-Sakauye, San

22

Francisco assistant District Attorney Paul Henderson and San Francisco Mayor Ed Lee.

23

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

24

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

25

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

26

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

27

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

28

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

1

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

2

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

3

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

4

Moye’s recusal motion does not meet the legal sufficiency requirement of § 144 because the

5

allegations of bias are conclusory and no affidavit or declaration under penalty of perjury was

6

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

7

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

8

Inc., 862 F.2d 1381, 1387-88 (9th Cir. 1988) (district judge correctly rejected disqualification

9

motion as legally insufficient and had no duty to refer it to another judge because the alleged bias or
prejudice did not arise from an extrajudicial source). Moye’s recusal motion also does not require

11
For the Northern District of California

United States District Court

10

disqualification under § 455. The Court notes that, due to Plaintiff’s failure to adequately plead a

12

claim as discussed in the next section, the Court cannot even determine what connection these

13

alleged social acquaintances – none of whom are Defendants – have to the dispute in this action.

14

The recusal motion is DENIED. (Docket # 5.)

15

B.

16

The Amended Complaint
Plaintiff filed an amended complaint in response to the Court’s order of dismissal with leave

17

to amend. The amended complaint, like the original complaint, alleges many conclusions but

18

virtually no facts. The very garbled amended complaint (Docket # 6) fails to cure the deficiencies

19

identified in the order of dismissal with leave to amend. First, the amended complaint fails to allege

20

“’a short and plain statement of the claim showing that the pleader is entitled to relief.’” See Docket

21

# 4 at 2 (quoting Fed. R. Civ. P. 8(a)(2)). Second, the amended complaint does not link any

22

Defendant to a legal claim by alleging what any Defendant did or failed to do that caused a violation

23

of Plaintiff’s rights. See id. at 2-3. The amended complaint will be dismissed for failure to state a

24

claim upon which relief may be granted. Further leave to amend will not be granted because the

25

Court already explained what Plaintiff needed to do to plead a claim under 42 U.S.C. § 1983, and he

26

was unable to do so.

27
28

The amended complaint makes several references to 28 U.S.C. § 1443 and § 1446, and
appears to request the removal of Plaintiff’s state criminal action to federal court. The Court

2

to satisfy the several procedural and substantive requirements for removal of a state criminal

3

prosecution to federal court. First, Plaintiff failed to file the right document: a notice of removal

4

rather than a civil rights complaint is the document to file to remove an action from state to federal

5

court.1 See 28 U.S.C. § 1455(a). Second, Plaintiff failed to provide the required “short and plain

6

statement of the grounds for removal, together with a copy of all process, pleadings, and orders

7

served upon such defendant or defendants in such action.” Id. Third, it is too late to remove the

8

criminal action from state court because it has been pending since 2011: without a showing of good

9

cause (which Plaintiff has not made), a notice of removal must be filed by the earlier of “30 days

10

after the arraignment in the state court, or at any time before trial.” Id. at § 1455(b)(1). Finally,

11
For the Northern District of California

declines to construe the civil rights complaint to be a notice of removal because the document fails

2

United States District Court

1

Plaintiff has not made the required substantive showing for removal of a case under § 1443: “it must

12

appear that the right allegedly denied the removal petitioner arises under a federal law ‘providing for

13

specific civil rights stated in terms of racial equality,’” and that the petitioner is denied or cannot

14

enforce the specified federal right in the state courts. Johnson v. Mississippi, 421 U.S. 213, 219

15

(1975) (quoting Georgia v. Rachel, 384 U.S. 780, 792, 803 (1966)).

16
17

For the foregoing reasons, this action is DISMISSED with prejudice for failure to state a
claim upon which relief may be granted. The Clerk shall close the file.

18
19

IT IS SO ORDERED.

20
21

Dated: December 20, 2013

22

_________________________
EDWARD M. CHEN
United States District Judge

23
24
25
26
27
28

1

In a separate action, Plaintiff recently did file a notice of removal in an effort to have the
state criminal prosecution removed to federal court, but the district court remanded the criminal case
back to state court in an order of remand issued on December 11, 2013. See Docket # 11 in Moye v.
People of the State of California, Case No. C 13-5405 PJH.

3