Ahtazaban-el-ben v. Hicks et al

Filing 13

ORDER Denying Plaintiff's #12 Motion for Recusal. Signed by Judge Marilyn L. Huff on 3/28/2017. (All non-registered users served via U.S. Mail Service)(ag)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 AHTAZABAN-EL-BEN YAHAWADA, dba Robert P. Crowe, 13 Case No.: 17-cv-00007-H (JLB) ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL Plaintiff, 14 v. 15 HAUHNA A. HICKS; et al., 16 [Doc. Nos. 10, 12.] Defendants. 17 18 On January 6, 2017, Plaintiff Ahtazaban-El-Ben Yahawada dba Robert P. Crowe, 19 proceeding pro se, filed a complaint against several defendants, alleging state law causes 20 of action for fraud, forgery, trespass, and conspiracy. (Doc. No. 1.) Along with the 21 complaint, Plaintiff paid the $400.00 filing fee.1 (Id.) 22 The entirety of the allegations set forth in the complaint were as follows: 23 24 [I], ahtazaban-el-ben yahawada, require: a ‘court of record’ and trial by jury[.] 25 Claim: Fraud, Forgery, Trespass and Conspiracy 26                                                                   27 1 28 In addition to the $350 statutory fee required under 28 U.S.C. § 1914(a), civil litigants must pay an additional administrative fee of $50. See 28 U.S.C. § 1914 Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2014). 1 17-cv-00007-H (JLB) 1 2 3 4 5 6 [I], ahtazaban-el-ben yahawada; autochthon; a man: all said wrongdoer(s) continue and conspire to trespass upon my property with the use of forged document(s) on/near 2/25/2015 by force and intimidation along with the aiding of said ex officio employee(s) Black’s Law 9th pg. 657. [I] require compensation for the continual trespass upon my property; compensation due: All property retuned to i and one-million dollars for damages and wrongs done to i. 7 8 [I]; ahtazaban-el-ben yahawada; a man; verify/certify said claims to be true under penalty and perjury. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Id.) On January 23, 2017, the Court sua sponte dismissed the complaint without prejudice for lack of subject matter jurisdiction. (Doc. No. 3.) In the order, the Court explained that it lacked subject matter jurisdiction over the action because the allegations in the complaint were obviously frivolous, and the complaint failed to sufficiently allege facts showing that the Court possessed diversity jurisdiction. (Id. at 2-3.) See Franklin v. Murphy, 745 F.2d 1221, 1226 n.6 (9th Cir. 1984); NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 612 (9th Cir. 2016). In the order, the Court granted Plaintiff leave to file a first amended complaint by February 24, 2017. (Doc. No. 3 at 4.) To date, Plaintiff has not filed a first amended complaint. On March 20, 2017, Plaintiff filed a notice of appeal to the Ninth Circuit as to the Court’s January 23, 2017 order dismissing his complaint without prejudice. (Doc. No. 6.) On March 20 and 21, 2017, Plaintiff filed two documents requesting an order from the undersigned judge recusing herself from the case. (Doc. Nos. 10, 12.) The Court denies Plaintiff’s request for recusal. The only basis for recusal given in Plaintiff’s filings is the Court’s January 23, 2017 order dismissing his complaint without prejudice. This is insufficient to justify a recusal from the case. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; 2 17-cv-00007-H (JLB) 1 and can only in the rarest circumstances evidence the degree of favoritism or antagonism 2 required (as discussed below) when no extrajudicial source is involved. Almost invariably, 3 they are proper grounds for appeal, not for recusal.” (citation omitted)); United States v. 4 Johnson, 610 F.3d 1138, 1148 (9th Cir. 2010) (explaining that dismissal of a civil case will 5 not “will not serve as [a] bas[is] for recusal absent unusual circumstances” and that 6 “[a]dverse findings do not equate to bias”); United States v. Holland, 519 F.3d 909, 914 7 (9th Cir. 2008) (explaining that “‘prior rulings in the proceeding’” will not ordinarily serve 8 as a basis for recusal). Further, Plaintiff’s assertion that the Court’s dismissal order was 9 malicious is without merit given that the dismissal order contained a thorough and reasoned 10 analysis of the allegations in Plaintiff’s complaint and the order granted Plaintiff leave to 11 file a first amended complaint. Accordingly, the Court denies Plaintiff’s motion for 12 recusal. 13 14 15 16 IT IS SO ORDERED. DATED: March 28, 2017 MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 17 18 19 20 21 22 23 24 25 26 27 28 3 17-cv-00007-H (JLB)

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