Lewis v. San Pablo Lytton Casino et al

Filing 15

ORDER by Judge Saundra Brown Armstrong GRANTING 4 Motion for Leave to Proceed in forma pauperis; DENYING 12 Motion for Leave to File Documents Electronically and for Disqualification. Plaintiff's Complaint is DISMISSED WITH LEAVE TO AMEND. Plaintiff's Amended Complaint due within (21) twenty-one-days of this Order. (lrc, COURT STAFF) (Filed on 11/18/2011) Modified on 11/18/2011 (jlm, COURT STAFF).

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 OAKLAND DIVISION 10 11 GARY L. LEWIS, Plaintiff, 12 Case No: C 11-5060 SBA ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND vs. 13 Dkt. 4, 12 14 SAN PABLO LYTTON CASINO & CHRIST TOPHER 15 Defendants. 16 17 18 I. 19 INTRODUCTION Plaintiff Gary L. Lewis filed the instant pro se action, apparently pursuant to 42 20 U.S.C. § 1983, against San Pablo Lytton Casino and “Christ Topher,” along with a request 21 to proceed in forma pauperis (“IFP”). Dkt. 1, 4. Subsequent to filing his Complaint, 22 Plaintiff filed a motion to disqualify the undersigned and a motion for permission to e-file 23 through the Court’s Electronic Case Filing program (“ECF”). Dkt. 12, 13. The Court 24 discusses these matters in turn. 25 II. 26 27 28 DISCUSSION A. PRE-SCREENING OF THE COMPLAINT Under 28 U.S.C. § 1915(e)(2), federal courts are authorized to pre-screen claims filed IFP prior to service and to dismiss the case at any time if the court determines that: 1 (1) the allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) the action 2 fails to state a claim; or (4) the action seeks monetary relief from a defendant who is 3 immune from such relief. A pleading filed by a pro se plaintiff must be liberally construed. 4 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 5 The basis of Plaintiff’s claims against San Pablo Lytton Casino and Christ Topher 6 are unclear. The Complaint does not allege any facts. Rather, the pleadings consist entirely 7 of citations to the Fourth Amendment, Fourteenth Amendment, California’s Unruh Civil 8 Rights Act, Cal. Civ. Code § 51 et seq., and California Penal Code §§ 422.6-422.865. But 9 in order to state a cognizable claim, Plaintiff must plead more than mere labels and 10 conclusions; he must also plead the facts that show the grounds for his entitlement to relief. 11 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007); see also Barren v. 12 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“[a] plaintiff must allege facts, not simply 13 conclusions, that show that an individual was personally involved in the deprivation of his 14 civil rights.”). Here, Plaintiff fails to identify any particular actions by any particular 15 Defendant that allegedly gives rise to this lawsuit. At a minimum, the Complaint must 16 “give the defendant fair notice of what the … claim is and the grounds upon which it rests.” 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Since Plaintiff’s Complaint fails to 18 meet these requirements, the Court dismisses the action with leave to amend to provide 19 such information in an amended complaint. 20 B. 21 Title 28, United States Code, section 455(a), states that “[a]ny justice, judge, or MOTION FOR DISQUALIFICATION 22 magistrate judge of the United States shall disqualify himself in any proceeding in which 23 his impartiality might reasonably be questioned.” The test for disqualification under 24 § 455(a) is an objective one; namely, “whether a reasonable person with knowledge of all 25 the facts would conclude that the judge’s impartiality might reasonably be questioned.” 26 Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005) 27 (per curiam) (internal quotation marks omitted). Disqualification is also authorized under 28 28 U.S.C. § 144, which provides that if “the judge before whom the matter is pending has a -2- 1 personal bias or prejudice either against him or in favor of any adverse party, such judge 2 shall proceed no further . . . .” Under both statutes, the salient question is whether a 3 reasonable person with knowledge of all the facts would conclude that the judge’s 4 impartiality might reasonably be questioned. Pesnell v. Arsenault, 543 F.3d 1038, 1043 5 (9th Cir. 2008). The decision on a motion to disqualify a judge is a matter of the district 6 court’s discretion. Id. 7 In the instant case, Plaintiff has adduced no facts or other information to raise any 8 issues regarding the impartiality of the undersigned. Rather, Plaintiff merely complains 9 that someone in the Clerk’s Office provided him with incorrect information regarding the 10 issuance of summons. Dkt. 13 at 2. According to Plaintiff, on November 1, 2011, an 11 unidentified clerk refused to issue summons to him because his IFP application was still 12 pending. Id. Setting aside that the clerk’s actions have no bearing on the undersigned’s 13 impartiality, the clerk’s response to Plaintiff was, in fact, correct. In the event the Court 14 were to grant Plaintiff’s IFP application and find that he had stated cognizable claims, the 15 Court would order service of the Complaint on the Defendants. In that case, the issuance of 16 summons would be unnecessary because service would be accomplished on Plaintiff’s 17 behalf by the Court. In sum, the Court concludes that Plaintiff’s motion for recusal is 18 without merit, and therefore, is DENIED. 19 C. 20 Cases filed by pro se litigants are automatically excluded from the Court’s ECF MOTION TO E-FILE 21 program. See Gen. Order No. 45. Plaintiff has submitted a request for permission to 22 register as an ECF user, but has provided no reason for his request. Accordingly, Plaintiff’s 23 request is DENIED. 24 III. CONCLUSION 25 For the reasons stated above, 26 IT IS HEREBY ORDERED THAT: 27 1. Plaintiff’s request to proceed IFP is GRANTED. 28 2. Pursuant to 28 U.S.C. § 1915(e)(2), the Complaint is DISMISSED for failure -3- 1 to state a claim. Plaintiff shall have twenty-one (21) days from the date this Order is filed 2 to file a First Amended Complaint, consistent with this Order. In the event Plaintiff fails to 3 file an amended complaint within that time-frame, the Court will dismiss the action for 4 failure to prosecute under Federal Rule of Civil Procedure 41(b), which will terminate the 5 action. 6 7 3. Plaintiff’s motion for disqualification and motion to register for participation in the ECF program are DENIED. 8 4. 9 IT IS SO ORDERED. 10 This Order terminates Docket 4 and 12. Dated: November 17, 2011 ________________________________ SAUNDRA BROWN ARMSTRONG United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 1 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 LEWIS et al, 4 Plaintiff, 5 v. 6 SAN PABLO LYTTON CASINO et al, 7 Defendant. / 8 9 Case Number: CV11-05060 SBA 10 CERTIFICATE OF SERVICE 11 12 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. 13 14 15 That on November 18, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Gary L. Lewis P.O. Box 99194 Emeryville, CA 94608 19 Dated: November 18, 2011 20 Richard W. Wieking, Clerk 21 By: LISA R CLARK, Deputy Clerk 22 23 24 25 26 27 28 -5-

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