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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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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11 GARY L. LEWIS,

Plaintiff,

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Case No: C 11-5060 SBA
ORDER DISMISSING COMPLAINT
WITH LEAVE TO AMEND

vs.

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Dkt. 4, 12
14 SAN PABLO LYTTON CASINO & CHRIST

TOPHER
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Defendants.
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I.

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INTRODUCTION
Plaintiff Gary L. Lewis filed the instant pro se action, apparently pursuant to 42

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U.S.C. § 1983, against San Pablo Lytton Casino and “Christ Topher,” along with a request

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to proceed in forma pauperis (“IFP”). Dkt. 1, 4. Subsequent to filing his Complaint,

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Plaintiff filed a motion to disqualify the undersigned and a motion for permission to e-file

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through the Court’s Electronic Case Filing program (“ECF”). Dkt. 12, 13. The Court

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discusses these matters in turn.

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II.

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DISCUSSION
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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:

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(1) the allegation of poverty is untrue; (2) the action is frivolous or malicious; (3) the action

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fails to state a claim; or (4) the action seeks monetary relief from a defendant who is

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immune from such relief. A pleading filed by a pro se plaintiff must be liberally construed.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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The basis of Plaintiff’s claims against San Pablo Lytton Casino and Christ Topher

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are unclear. The Complaint does not allege any facts. Rather, the pleadings consist entirely

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of citations to the Fourth Amendment, Fourteenth Amendment, California’s Unruh Civil

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Rights Act, Cal. Civ. Code § 51 et seq., and California Penal Code §§ 422.6-422.865. But

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in order to state a cognizable claim, Plaintiff must plead more than mere labels and

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conclusions; he must also plead the facts that show the grounds for his entitlement to relief.

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See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 553-56 (2007); see also Barren v.

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Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“[a] plaintiff must allege facts, not simply

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conclusions, that show that an individual was personally involved in the deprivation of his

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civil rights.”). Here, Plaintiff fails to identify any particular actions by any particular

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Defendant that allegedly gives rise to this lawsuit. At a minimum, the Complaint must

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“give the defendant fair notice of what the … claim is and the grounds upon which it rests.”

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). Since Plaintiff’s Complaint fails to

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meet these requirements, the Court dismisses the action with leave to amend to provide

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such information in an amended complaint.

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B.

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Title 28, United States Code, section 455(a), states that “[a]ny justice, judge, or

MOTION FOR DISQUALIFICATION

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magistrate judge of the United States shall disqualify himself in any proceeding in which

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his impartiality might reasonably be questioned.” The test for disqualification under

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§ 455(a) is an objective one; namely, “whether a reasonable person with knowledge of all

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the facts would conclude that the judge’s impartiality might reasonably be questioned.”

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Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th Cir. 2005)

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(per curiam) (internal quotation marks omitted). Disqualification is also authorized under

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28 U.S.C. § 144, which provides that if “the judge before whom the matter is pending has a
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personal bias or prejudice either against him or in favor of any adverse party, such judge

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shall proceed no further . . . .” Under both statutes, the salient question is whether 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. Pesnell v. Arsenault, 543 F.3d 1038, 1043

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(9th Cir. 2008). The decision on a motion to disqualify a judge is a matter of the district

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court’s discretion. Id.

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In the instant case, Plaintiff has adduced no facts or other information to raise any

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issues regarding the impartiality of the undersigned. Rather, Plaintiff merely complains

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that someone in the Clerk’s Office provided him with incorrect information regarding the

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issuance of summons. Dkt. 13 at 2. According to Plaintiff, on November 1, 2011, an

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unidentified clerk refused to issue summons to him because his IFP application was still

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pending. Id. Setting aside that the clerk’s actions have no bearing on the undersigned’s

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impartiality, the clerk’s response to Plaintiff was, in fact, correct. In the event the Court

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were to grant Plaintiff’s IFP application and find that he had stated cognizable claims, the

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Court would order service of the Complaint on the Defendants. In that case, the issuance of

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summons would be unnecessary because service would be accomplished on Plaintiff’s

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behalf by the Court. In sum, the Court concludes that Plaintiff’s motion for recusal is

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without merit, and therefore, is DENIED.

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C.

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Cases filed by pro se litigants are automatically excluded from the Court’s ECF

MOTION TO E-FILE

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program. See Gen. Order No. 45. Plaintiff has submitted a request for permission to

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register as an ECF user, but has provided no reason for his request. Accordingly, Plaintiff’s

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request is DENIED.

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III.

CONCLUSION

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For the reasons stated above,

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IT IS HEREBY ORDERED THAT:

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1.

Plaintiff’s request to proceed IFP is GRANTED.

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2.

Pursuant to 28 U.S.C. § 1915(e)(2), the Complaint is DISMISSED for failure
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to state a claim. Plaintiff shall have twenty-one (21) days from the date this Order is filed

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to file a First Amended Complaint, consistent with this Order. In the event Plaintiff fails to

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file an amended complaint within that time-frame, the Court will dismiss the action for

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failure to prosecute under Federal Rule of Civil Procedure 41(b), which will terminate the

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action.

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Plaintiff’s motion for disqualification and motion to register for participation

in the ECF program are DENIED.

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4.

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IT IS SO ORDERED.

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This Order terminates Docket 4 and 12.

Dated: November 17, 2011
________________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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LEWIS et al,
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Plaintiff,
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v.
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SAN PABLO LYTTON CASINO et al,
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Defendant.
/

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Case Number: CV11-05060 SBA
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CERTIFICATE OF SERVICE
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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.

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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.

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Gary L. Lewis
P.O. Box 99194
Emeryville, CA 94608

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Dated: November 18, 2011
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Richard W. Wieking, Clerk

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By: LISA R CLARK, Deputy Clerk

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