Saddozai v. Atchley et al

Filing 6

ORDER DENYING MOTION FOR RECUSAL; SUA SPONTE GRANTING EXTENSION OF TIME TO FILE AMENDED COMPLAINT re 5 Affidavit in Support filed by Shikeb Saddozai Amended Complaint due by 10/5/2021. Signed by Judge Beth Labson Freeman on 9/7/2021. (tshS, COURT STAFF) (Filed on 9/7/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 5:21-cv-01169-BLF Document 6 Filed 09/07/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
Northern District of California

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SHIKEB SADDOZAI,
Plaintiff,
v.

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ORDER DENYING MOTION FOR
RECUSAL; SUA SPONTE
GRANTING EXTENSION OF TIME
TO FILE AMENDED COMPLAINT

M. B. ATCHLEY, et al.,

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Case No. 21-01352 BLF (PR)

Defendants.

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(Docket No. 5)

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Plaintiff, a California state prisoner, filed the instant pro se civil rights action

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pursuant to 42 U.S.C. § 1983, against prison officials at Salinas Valley State Prison

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(“SVSP”) where he is currently confined. Dkt. No. 1. On June 28, 2021, the Court

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dismissed the original complaint with leave to amend, such that Plaintiff had until July 26,

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2021, to file an amended complaint. Dkt. No. 4 at 9. He has not done so.

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Plaintiff has filed a “preemptory challenge and disqualification of judge pursuant to

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CCP §§ 170.6; 170.6(a)6; 1141.8; 1141.18(d); and Title 28 U.S.C. §§ 144; 455.” Dkt. No.

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5. Section 170.6 of the California Code of Civil Procedure (“CCP”) sets forth the

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procedures for disqualification of judges sitting in state superior court and is therefore

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inapplicable to this Court. With respect to sections “1141.8” or “1141.18(d),” there are no

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such enumerated sections in the current CCP, and Plaintiff provides no explanation for

Case 5:21-cv-01169-BLF Document 6 Filed 09/07/21 Page 2 of 3

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what law these cited sections contain. Accordingly, the Court will construe the motion as

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a motion for recusal.

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Motions to recuse a district court judge fall under two statutes, 28 U.S.C. § 144 and

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28 U.S.C. § 455. The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C.

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§ 455 is the same: Whether a reasonable person with knowledge of all the facts would

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conclude that the judge’s impartiality might reasonably be questioned. United States v.

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McTiernan, 695 F.3d 882, 891 (9th Cir. 2012); Yagman v. Republic Ins., 987 F.2d 622,

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626 (9th Cir. 1993) (citation omitted). Sections 144 and 455 ask whether a reasonable

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person perceives a significant risk that the judge will resolve the case on a basis other than
the merits. Clemens v. United States Dist. Ct. for the Cent. Dist. of Cal., 428 F.3d 1175,

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United States District Court
Northern District of California

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1178 (9th Cir. 2005). The reasonable person in this context means a well-informed,

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thoughtful observer, as opposed to a hypersensitive or unduly suspicious person. Id.

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As a federal judge is presumed to be impartial, a substantial burden is imposed on

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

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Zagari, 419 F. Supp. 494, 501 (N.D. Cal. 1976). Plaintiff asserts that there exists a conflict

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of interest, and that the undersigned is prejudiced, has a personal bias against him, and is in

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favor of the adverse party. Dkt. No. 5 at 1. Plaintiff asserts that he does not believe that he

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can have a “fair and impartial trial and hearing” before this Court. Id. However,

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Plaintiff’s assertions are conclusory and not supported by any factual allegations.

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Accordingly, Plaintiff’s conclusory assertions are not sufficient to overcome the

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presumption that this Court can be fair and impartial in this action. Plaintiff may appeal

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the decision to the Ninth Circuit, but otherwise has no basis for moving to recuse the Court

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from this matter. The motion for recusal is DENIED. Dkt. No. 5.

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In the interest of justice, Plaintiff shall be granted an extension of time to file an

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amended complaint in response to the Court’s order of dismissal with leave to amend.

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Dkt. No. 4. Within twenty-eight (28) days from the date this order is filed, Plaintiff shall

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file an amended complaint to attempt to correct the deficiencies discussed in the court

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Case 5:21-cv-01169-BLF Document 6 Filed 09/07/21 Page 3 of 3

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order. Id. All other provisions of the court order shall remain in effect. Id. at 9.

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Failure to respond in accordance with this order in the time provided will

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result in the dismissal of this action with prejudice for failure to state a claim, without

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further notice to Plaintiff.

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This order terminates Docket No. 5.

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IT IS SO ORDERED.

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Dated: _September 7, 2021______

________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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Order Denying Motion for Recusal; Granting EOT to file Am. Compl.
PRO-SE\BLF\CR.21\01169Saddozai_deny.recusal&eot-amcompl

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