Haynie v. Whyte

Filing 5

ORDER FOR REASSIGNMENT TO A DISTRICT COURT JUDGE; REPORT AND RECOMMENDATION TO DENY APPLICATION TO PROCEED IN FORMA PAUPERIS. Signed by Judge Patricia V. Trumbull on June 23, 2010. (pvtlc2, COURT STAFF) (Filed on 6/24/2010)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) Plaintiff, ) v. ) ) RONALD M. WHYTE, U.S. DISTRICT ) JUDGE, ) ) Defendant. ) ___________________________________ ) GARY W. HAYNIE, Case No.: C 10-02621 PVT ORDER FOR REASSIGNMENT TO A DISTRICT COURT JUDGE; REPORT AND RECOMMENDATION TO DENY APPLICATION TO PROCEED IN FORMA PAUPERIS UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION On June 15, 2010, plaintiff Gary W. Haynie applied to proceed in forma pauperis in the above-captioned action.1 Based on the application and the file herein, IT IS HEREBY ORDERED that this case be reassigned to a District Court Judge2 with the recommendation that the case be dismissed with leave to amend. A federal court must dismiss an in forma pauperis complaint if the complaint is: (1) frivolous; (2) fails to state a claim on which relief may be granted; or seeks (3) monetary relief against a defendant who is immune from such relief. The holding of this court is limited to the facts and particular circumstances underlying the present application. This court is ordering reassignment to a District Court Judge because, absent consent of all parties, a Magistrate Judge does not have authority to dismiss the case. ORDER, page 1 2 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See, 28 U.S.C. 1915(e)(2); see also Neitzke v. Williams, 490 U.S. 319, 324 (1989). Here, plaintiff alleges certain violations of the Judicial Ethics Handbook and the fifth, sixth, ninth, and fourteenth amendments to the U.S. Constitution. He states that Judge Whyte was biased in handling his civil case, engaged in improper ex parte communications with defendants, and should be recused from making any further rulings in the underlying case. Plaintiff has failed to state a claim on which relief may be granted. Before dismissing a complaint, however, a district court must give pro se litigants an opportunity to amend their complaint unless it is absolutely clear that no amendment could cure the defect. See, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). Thus, leave to amend appears appropriate. Dated: June 23, 2010 PATRICIA V. TRUMBULL United States Magistrate Judge ORDER, page 2

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