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)

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Case 5:21-cv-01169-BLF Document 6 Filed 09/07/21 Page 1 of 3 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 United States District Court Northern District of California 11 12 SHIKEB SADDOZAI, Plaintiff, v. 13 14 ORDER DENYING MOTION FOR RECUSAL; SUA SPONTE GRANTING EXTENSION OF TIME TO FILE AMENDED COMPLAINT M. B. ATCHLEY, et al., 15 Case No. 21-01352 BLF (PR) Defendants. 16 (Docket No. 5) 17 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983, against prison officials at Salinas Valley State Prison 20 (“SVSP”) where he is currently confined. Dkt. No. 1. On June 28, 2021, the Court 21 dismissed the original complaint with leave to amend, such that Plaintiff had until July 26, 22 2021, to file an amended complaint. Dkt. No. 4 at 9. He has not done so. 23 Plaintiff has filed a “preemptory challenge and disqualification of judge pursuant to 24 CCP §§ 170.6; 170.6(a)6; 1141.8; 1141.18(d); and Title 28 U.S.C. §§ 144; 455.” Dkt. No. 25 5. Section 170.6 of the California Code of Civil Procedure (“CCP”) sets forth the 26 procedures for disqualification of judges sitting in state superior court and is therefore 27 inapplicable to this Court. With respect to sections “1141.8” or “1141.18(d),” there are no 28 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 1 what law these cited sections contain. Accordingly, the Court will construe the motion as 2 a motion for recusal. 3 Motions to recuse a district court judge fall under two statutes, 28 U.S.C. § 144 and 4 28 U.S.C. § 455. The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. 5 § 455 is the same: Whether a reasonable person with knowledge of all the facts would 6 conclude that the judge’s impartiality might reasonably be questioned. United States v. 7 McTiernan, 695 F.3d 882, 891 (9th Cir. 2012); Yagman v. Republic Ins., 987 F.2d 622, 8 626 (9th Cir. 1993) (citation omitted). Sections 144 and 455 ask whether a reasonable 9 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, 11 United States District Court Northern District of California 10 1178 (9th Cir. 2005). The reasonable person in this context means a well-informed, 12 thoughtful observer, as opposed to a hypersensitive or unduly suspicious person. Id. 13 As a federal judge is presumed to be impartial, a substantial burden is imposed on 14 the party claiming bias or prejudice to show that this is not the case. See United States v. 15 Zagari, 419 F. Supp. 494, 501 (N.D. Cal. 1976). Plaintiff asserts that there exists a conflict 16 of interest, and that the undersigned is prejudiced, has a personal bias against him, and is in 17 favor of the adverse party. Dkt. No. 5 at 1. Plaintiff asserts that he does not believe that he 18 can have a “fair and impartial trial and hearing” before this Court. Id. However, 19 Plaintiff’s assertions are conclusory and not supported by any factual allegations. 20 Accordingly, Plaintiff’s conclusory assertions are not sufficient to overcome the 21 presumption that this Court can be fair and impartial in this action. Plaintiff may appeal 22 the decision to the Ninth Circuit, but otherwise has no basis for moving to recuse the Court 23 from this matter. The motion for recusal is DENIED. Dkt. No. 5. 24 In the interest of justice, Plaintiff shall be granted an extension of time to file an 25 amended complaint in response to the Court’s order of dismissal with leave to amend. 26 Dkt. No. 4. Within twenty-eight (28) days from the date this order is filed, Plaintiff shall 27 file an amended complaint to attempt to correct the deficiencies discussed in the court 28 2 Case 5:21-cv-01169-BLF Document 6 Filed 09/07/21 Page 3 of 3 1 order. Id. All other provisions of the court order shall remain in effect. Id. at 9. 2 Failure to respond in accordance with this order in the time provided will 3 result in the dismissal of this action with prejudice for failure to state a claim, without 4 further notice to Plaintiff. 5 This order terminates Docket No. 5. 6 IT IS SO ORDERED. 7 Dated: _September 7, 2021______ ________________________ BETH LABSON FREEMAN United States District Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Order Denying Motion for Recusal; Granting EOT to file Am. Compl. PRO-SE\BLF\CR.21\01169Saddozai_deny.recusal&eot-amcompl 26 27 28 3

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