Abpikar v. Sanchez et al

Filing 13

ORDER OF SERVICE; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion. Dispositive Motion due by 5/22/2013. Signed by Judge Ronald M. Whyte on 2/21/13. (jg, COURT STAFF) (Filed on 2/21/2013)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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HASSAN ABPIKAR,

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Plaintiff,

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v.
DWAYNE SANCHEZ, et al.,

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Defendants.

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No. C 12-3982 RMW (PR)
ORDER OF SERVICE;
DIRECTING DEFENDANTS
TO FILE DISPOSITIVE
MOTION OR NOTICE
REGARDING SUCH MOTION

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights action pursuant to Bivens
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v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff is
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granted leave to proceed in forma pauperis in a separate order. For the reasons below, the court
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serves plaintiff’s complaint upon named defendants.
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DISCUSSION
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A.

Standard of Review

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Federal courts must engage in a preliminary screening of cases in which prisoners seek
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redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). In its review the court must identify any cognizable claims, and dismiss any claims
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which are frivolous, malicious, fail to state a claim upon which relief may be granted, or seek
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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2).
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Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696,
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Order of Service; Directing Defendants to File Disposition Motion
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699 (9th Cir. 1990).

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The elements of a private cause of action under Bivens and its progeny, are: (1) that a

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right secured by the Constitution of the United States was violated, and (2) that the alleged

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deprivation was committed by a federal actor. Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir.

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1991) (Section 1983 and Bivens actions are identical save for the replacement of a state actor

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under Section 1983 by a federal actor under Bivens). When reviewing a Bivens action for which

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there is no case on point, therefore, § 1983 cases are applied by analogy. See, e.g., Butz v.

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Economou, 438 U.S. 478, 504 (1978) (no distinctions for purposes of immunity between state

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officials sued under § 1983 and federal officials sued under Bivens); Van Strum, 940 F.2d at 409

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(same statute of limitation should be used for Section 1983 actions as for Bivens actions).

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B.

Plaintiff’s Claims

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In his complaint, plaintiff alleges that defendants attempted to use plaintiff as an

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informant. When defendants were dissatisfied with the information plaintiff provided to them,

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they obtained two search warrants, based on fraud and without probable cause, and searched

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plaintiff’s residences. Plaintiff further alleges that defendants did so in retaliation of plaintiff’s

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religious beliefs, as well as to punish him for refusing to be a permanent informant. Finally,

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plaintiff claims that defendants improperly seized jewels and other valuables which were not

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included in the search warrants. Liberally construed, plaintiff has stated cognizable claims that

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defendants violated the First, Fourth, Fifth, and Eighth Amendments. Plaintiff’s claim that

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defendants violated his Fourteenth Amendment due process rights is DISMISSED because

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plaintiff is a federal litigant. See S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S.

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522, 542 n.21 (1987) (recognizing that the Fourteenth Amendment applies only to the states

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while the Fifth Amendment applies to the federal government).

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C.

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Miscellaneous motions
Plaintiff’s motion “to retain jurisdiction and venue” in the San Francisco division of the

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Northern District of California is DENIED. In general, cases filed in the Northern District of

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California are assigned by the clerk of the court by random and blind assignment. N.D. Cal.

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Gen. Order No. 44. Because the undersigned was assigned plaintiff’s non-habeas civil
Order of Service; Directing Defendants to File Disposition Motion
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complaints less than five years ago, the instant action was assigned to the undersigned judge.

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See id. at 44(D)(5), (6).

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To the extent plaintiff requests recusal of the undersigned judge, that motion is DENIED.

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Absent a legitimate reason to recuse himself or herself, a judge has a duty to sit in judgment in

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all cases assigned to that judge. United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008).

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The inquiry is whether a reasonable person would have a reasonable basis for questioning the

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judge’s impartiality, not whether the judge is in fact impartial. See In re Beard, 811 F.2d 818,

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827 (4th Cir. 1987). Section “455(a) requires judicial recusal if a reasonable person, knowing all

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the circumstances, would expect that the judge would have actual knowledge of his interest or

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bias in the case.” Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co.,

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535 U. S. 229, 231-32 (2002) (internal quotation marks omitted). Bias or prejudice developed

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as a result of what a judge learns from participating in the course of prior proceedings is not

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generally grounds for recusal. See Liteky v. United States, 510 U.S. 540, 555-56 (1994); United

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

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presided over criminal trials does not disqualify him from subsequent civil forfeiture case).

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Moreover, judicial rulings alone may constitute grounds for appeal, but almost never constitute a

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valid basis for a bias or impartiality motion. See Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th

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Cir. 1999) (court's adverse rulings are not an adequate basis for recusal). Thus, plaintiff has not

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met his substantial burden of demonstrating that a reasonable person would have a reasonable

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basis for questioning this court’s impartiality.

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Plaintiff’s motion for clarification, filed November 20, 2012, is GRANTED. On

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September 27, 2012, plaintiff filed a motion for clarification -- which was docketed as a “letter --

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in which he questioned why he received mail from the clerk directing him to file a complaint.

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On October 11, 2012, the court’s paralegal responded to plaintiff’s “letter,” stating that the

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clerk’s notice was sent to him in error. The court’s paralegal also sent plaintiff a courtesy copy

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of the docket sheet. Despite plaintiff’s belief, this matter remains under the jurisdiction of the

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undersigned.

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Order of Service; Directing Defendants to File Disposition Motion
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CONCLUSION

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For the foregoing reasons, the court hereby orders as follows:

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1.

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Plaintiff’s motion to retain jurisdiction is DENIED. Plaintiff’s motion to clarify

is GRANTED.
2.

Plaintiff has presented claims cognizable under Bivens. The clerk of the court

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shall mail a Notice of Lawsuit and Request for Waiver of Service of Summons, two copies of the

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Waiver of Service of Summons, a copy of the complaint and all attachments thereto (docket no.

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1), and a copy of this order to Special DHS/ICE Federal Agent Dwayne Sanchez and Special

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DHS/ICE Federal Agent Thomas Orecchia at the U.S. Department of Homeland Security,

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280 South First St. Suite 190, San Jose, CA 95113; and FBI Agent and Chief of the Anti-

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Terrorism Unit Robert Carr and Special DHS/ICE Federal Agent David Harris at 950

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South Bascom Avenue, Campbell, CA 95008.

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The clerk shall also send a copy of the summons and of the complaint to the Attorney

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General of the United States in Washington, D.C. Additionally, the clerk shall mail a copy of

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this order to plaintiff.

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3.

Defendants are cautioned that Rule 4 of the Federal Rules of Civil Procedure

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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.

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Pursuant to Rule 4, if defendants, after being notified of this action and asked by the court, on

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behalf of plaintiff, to waive service of the summons, fail to do so, they will be required to bear

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the cost of such service unless good cause is shown for their failure to sign and return the waiver

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form. If service is waived, this action will proceed as if defendants had been served on the date

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that the waiver is filed, except that pursuant to Rule 12(a)(1)(B), defendants will not be required

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to serve and file an answer before sixty (60) days from the date on which the request for waiver

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was sent. (This allows a longer time to respond than would be required if formal service of

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summons is necessary.) Defendants are asked to read the statement set forth at the bottom of the

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waiver form that more completely describes the duties of the parties with regard to waiver of

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service of the summons. If service is waived after the date provided in the Notice but before

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defendants have been personally served, the Answer shall be due sixty (60) days from the date
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on which the request for waiver was sent or twenty (20) days from the date the waiver form is

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filed, whichever is later.

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4.

No later than ninety (90) days from the date of this order, defendants shall file a

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motion for summary judgment or other dispositive motion with respect to the cognizable claim

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in the complaint.

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a.

If defendants elect to file a motion to dismiss on the grounds that plaintiff

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failed to exhaust his available administrative remedies as required by 42 U.S.C. § 1997e(a),

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defendants shall do so in an unenumerated Rule 12(b) motion pursuant to Wyatt v. Terhune, 315

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F.3d 1108, 1119-20 (9th Cir. 2003).

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b.

Any motion for summary judgment shall be supported by adequate factual

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documentation and shall conform in all respects to Rule 56 of the Federal Rules of Civil

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Procedure. Defendants are advised that summary judgment cannot be granted, nor

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qualified immunity found, if material facts are in dispute. If defendants are of the opinion

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that this case cannot be resolved by summary judgment, they shall so inform the court

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prior to the date the summary judgment motion is due.

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5.

Plaintiff’s opposition to the dispositive motion shall be filed with the court and

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served on defendants no later than twenty-eight (28) days from the date defendants’ motion is

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filed. Plaintiff is advised to read Rule 56 of the Federal Rules of Civil Procedure and Celotex

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Corp. v. Catrett, 477 U.S. 317 (1986) (holding party opposing summary judgment must come

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forward with evidence showing triable issues of material fact on every essential element of his

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claim).

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6.

Defendants shall file a reply brief no later than fourteen (14) days after plaintiff’s

opposition is filed.
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The motion shall be deemed submitted as of the date the reply brief is due. No

hearing will be held on the motion unless the court so orders at a later date.
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All communications by the plaintiff with the court must be served on defendants

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or defendants’ counsel, by mailing a true copy of the document to defendants or defendants’

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counsel.
Order of Service; Directing Defendants to File Disposition Motion
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9.

Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

No further court order is required before the parties may conduct discovery.
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It is plaintiff’s responsibility to prosecute this case. Plaintiff must keep the court

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and all parties informed of any change of address and must comply with the court’s orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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This order terminates docket numbers 4 and 9.

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IT IS SO ORDERED.

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DATED:
RONALD M. WHYTE
United States District Judge

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Order of Service; Directing Defendants to File Disposition Motion
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

HASSAN ABPIKAR,

Case Number: CV12-03982 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
DWAYNE SANCHEZ et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on February 21, 2013, 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.

Hassan Abpikar
Federal Correctional Institution
Reg # 10969-111
3600 Guard Road
Lompoc, CA 93436
Dated: February 21, 2013
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk