Shteynberg v. San Diego County Jail Sheriff's Department Medical Team

Filing 77

ORDER Denying Pending Motions (ECF Nos. 72 , 74 , 76 ). the Court DENIES Plaintiff's Motion to Reopen Case (ECF No. 72 ) and DENIES Plaintiff's Motion to Request a Hearing on Damages (ECF No. 74 ). To the extent Plaintiff's Notic e to the Ethical Committee of the Judicial Performances Recusal of District Judge (ECF No. 76 ) requests the undersigned recuse herself and requests appointment of counsel, the Court DENIES those requests. This case remains closed. Signed by Judge Janis L. Sammartino on 10/25/2021. (All non-registered users served via U.S. Mail Service) (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RUDOLF SHTEYNBERG,

Case No.: 17-CV-1098 JLS (KSC)
Plaintiff,

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ORDER DENYING PENDING
MOTIONS

v.

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(ECF Nos. 72, 74, 76)

SAN DIEGO COUNTY JAIL
SHERIFF’S DEPARTMENT MEDICAL
TEAM,

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Defendant.

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Presently before the Court are Plaintiff Rudolf Shteynberg’s Motion to Reopen Case

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(“1st Mot.” ECF No. 72) and Motion to Request for a Hearing on Damages (“2nd Mot.,”

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ECF No. 74). Plaintiff also filed a Notice to the Ethical Committee of the Judicial

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Performances Recusal of District Judge (“Notice,” ECF No. 76). After considering

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Plaintiff’s Motions and the applicable law, the Court DENIES Plaintiff’s Motions for the

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following reasons.

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BACKGROUND

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On May 30, 2017, Plaintiff filed a complaint against the San Diego County Jail

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Sheriff’s Department Medical Team alleging “violations of civil rights,” “medical
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negligence,” “mass tort,” “false arrests,” “personal injuries,” “time spen[t],” and “$

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spen[t].” ECF No. 1. Plaintiff also filed a Motion to Proceed In Forma Pauperis (“IFP”).

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ECF No. 2. On June 30, 2017, the Court granted Plaintiff’s Motion to Proceed IFP and

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screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(a). ECF No. 6. The Court

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determined that Plaintiff did not plead sufficient factual allegations for the Court to

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determine whether he stated a claim under 42 U.S.C. § 1983. Id. at 4. The Court dismissed

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Plaintiff’s Complaint and allowed Plaintiff thirty days to file an amended complaint.

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Nearly a year after the Court’s order dismissing his original Complaint, Plaintiff

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filed a First Amended Complaint on April 6, 2018 (ECF No. 57). On June 12, 2018, the

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Court screened Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915(a) and

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found Plaintiff’s amended complaint failed to state a claim for relief. ECF No. 67. The

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Court granted Plaintiff thirty days from the date of that order to file an amended complaint

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and cautioned that “[s]hould Plaintiff fail to file an amended complaint within the time

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provided, the Court may enter a final order dismissing this civil action with prejudice.” Id.

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at 6 (emphasis omitted). Plaintiff failed to file an amended complaint, and on July 13,

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2018, the Court issued an Order to Show Cause (“OSC”) why this case should not be

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dismissed without prejudice for failure to file an amended complaint. (ECF No. 68). The

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Court granted Plaintiff until August 17, 2018 to respond to the OSC. Id. When Plaintiff

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failed to respond to the Court’s OSC or file an amended complaint, the Court issued an

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order dismissing this case without prejudice on August 20, 2018. ECF No. 69. Plaintiff

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filed the present Motions nunc pro tunc to September 14, 2021—more than three years

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after the Court’s order dismissing this case. See ECF Nos. 72, 74, 76.

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LEGAL STANDARD

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Under Rule 60, a motion for “relief from a final judgment, order or proceeding” may

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be filed within a “reasonable time,” but usually must be filed “no more than a year after

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the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c).

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Reconsideration under Rule 60 may be granted in the case of: (1) mistake, inadvertence,

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surprise, or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the
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judgment is void; (5) the judgment has been satisfied; or (6) for any other reason justifying

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relief. Fed. R. Civ. P. 60(b).

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ANALYSIS
In a single page filing captioned Motion to Reopen Case, Plaintiff states:
This is a request to reopen the case Rudolf Shteynberg vs.
Sherriff’s Department of the San Diego County on legal matters
as tort/civil rights violations/title 1983 monetary request for
restitution to compensate illegal tort and battery while being in a
custody of the Sheriff’s Department.
San Diego City
Correctional Facility and false arrest by a police officers during
[illegible] done to indirect misconduct of Lady (Lilianna) while
in [illegible] services.
1st Mot. at 1.

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Plaintiff further states that the Motion “is to notify [illegible] Judge assigned to these

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legal matters! And Administrator of the Court House of San Diego County.” The Court

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construes this filing as a motion for reconsideration of the Court’s August 20, 2018 Order

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(the “Order”) dismissing Plaintiff’s action for failing to respond to the OSC or file an

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amended complaint.

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As an initial matter, Plaintiff’s Motion is untimely pursuant to Rule 60. Plaintiff

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filed the Motion more than three years after the Court issued the Order dismissing this case

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without prejudice. Even examining the motion on the merits, however, Plaintiff provides

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no information warranting relief from the Order. In the OSC, “[t]he Court ordered Plaintiff

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to respond or file an amended complaint on or before August 17, 2018.” Order at 1.

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Plaintiff did not do so. Id. at 2. The Court allowed Plaintiff multiple opportunities to

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amend his complaint, but Plaintiff failed to do so. Even three years later, Plaintiff’s present

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filings cannot be construed as pleadings. The present Motion is void of any reasons why

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Plaintiff should be granted relief to reopen this case. A motion for reconsideration cannot

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be granted merely because Plaintiff is unhappy with the judgment, frustrated by the Court’s

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application of the facts to binding precedent, or because he disagrees with the ultimate

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decision. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure
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§ 2810.1 (3d ed.) (“[R]econsideration of a judgment after its entry is an extraordinary

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remedy which should be used sparingly.”). The Court finds that Plaintiff has failed to

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provide any factual or evidentiary support for any basis that would justify vacating the

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Court’s August 20, 2018 Order. Accordingly, Plaintiff’s Motion to Reopen Case is

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DENIED.

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Plaintiff’s Motion to Request a Hearing on Damages is similarly brief and provides

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no factual information regarding Plaintiff’s claims. As the Court has denied Plaintiff’s

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motion to reconsider the Order dismissing this case, Plaintiff’s Motion to Request a

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Hearing on Damages is DENIED AS MOOT.

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Finally, Plaintiff filed a Notice that he captioned Notice to the Ethical Committee of

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the Judicial Performances Recusal of District Judge. Plaintiff states the purpose of the

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notice is “to notify that [illegible] master/Judge Sammartino has been recused from

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presiding over the case as a [illegible] judge, since she refused to appoint a legal counsel

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to represent the plaintiff on damages claim!” Plaintiff is appearing pro se, and thus his

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pleadings must be liberally construed. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th

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Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the

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‘inartful pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454 U.S. 364, 365

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(1982) (per curiam))). Therefore, the Court construes Plaintiff’s notice as a request that

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the undersigned recuse herself and a request for appointment of counsel. The Court

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addresses these requests in turn.

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Under § 455(a), “[a]ny justice, judge, or magistrate judge of the United States shall

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disqualify [her]self in any proceeding in which h[er] impartiality might reasonably be

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questioned.” The test for recusal under § 455(a) is an objective one; a judge must recuse

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herself if “a reasonable person with knowledge of all the facts would conclude that the

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judge’s impartiality might reasonably be questioned.” United States v. Holland, 519 F.3d

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909, 913 (9th Cir. 2008) (quoting Clemens v. U.S. Dist. Court, 428 F.3d 1175, 1178 (9th

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Cir. 2005)) (internal quotation marks omitted); accord Liteky v. United States, 510 U.S.

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540, 548 (1994). “The ‘reasonable person’ is not someone who is ‘hypersensitive or
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unduly suspicious,’ but rather is a ‘well-informed, thoughtful observer.’” Holland, 519

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F.3d at 913 (quoting In re Mason, 916 F.3d 384, 386 (7th Cir.1990)). Plaintiff failed to

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present any facts to suggest partiality or bias on the part of the undersigned. Plaintiff

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appears to solely base his request for recusal on the Court’s denial of his motion for

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appointment of counsel. Notice at 1. On June 12, 2018, the Court denied Plaintiff’s motion

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to appoint counsel without prejudice. See ECF No. 67 at 5. In denying Plaintiff’s request,

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the Court reasoned that “Plaintiff’s First Amended Complaint provides the barest

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information necessary and the Court has dismissed it, per 28 U.S.C. § 1915(e)(2).” Id.

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Because there is no basis for recusal or disqualification, Plaintiff has not provided any

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reason why the undersigned’s impartiality might reasonably be questioned. Denying a

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motion without prejudice is not a basis for recusal. United States v. Ford, 293 F. Supp. 3d

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1138, 1140 (E.D. Cal. 2018) (“Prior judicial rulings unfavorable to defendant are a basis

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for appeal, not recusal.”).

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undersigned recuse from the case, that request is DENIED.

Therefore, to the extent Plaintiff’s Notice requests the

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As to Plaintiff’s request for appointment of counsel, that request is also DENIED.

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There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social Servs.

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of Durham Cnty., 452 U.S. 18, 25 (1981). This case has remained closed for more than

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three years, and Plaintiff never filed an amended complaint.

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pleading, the Court declines to entertain a motion to appoint counsel. As this case remains

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closed, appointment of counsel is not appropriate.

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Without an operative

CONCLUSION

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For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Reopen

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Case (ECF No. 72) and DENIES Plaintiff’s Motion to Request a Hearing on Damages

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(ECF No. 74). To the extent Plaintiff’s Notice to the Ethical Committee of the Judicial

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Performances Recusal of District Judge (ECF No. 76) requests the undersigned recuse

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///
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herself and requests appointment of counsel, the Court DENIES those requests. This case

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remains closed.

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IT IS SO ORDERED.
Dated: October 25, 2021

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