Harrison v. Wheat

Filing 4

ORDER denying 3 Motion to Recusal all Judges and Magistrate Judges; denying 2 Motion for Leave to Proceed in forma pauperis. Motion is Denied pursuant to 28 USC 1915(g); dismissing Civil Action without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. 28 U.S.C. § 1914(a). The court DIRECTS the Clerk of Court to close the file. Signed by Judge Anthony J. Battaglia on 9/20/2017. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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DAVID SCOTT HARRISON,
CDCR #E-62612,

ORDER:

Plaintiff,

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Case No.: 3:17-cv-01550-AJB-BLM

vs.

1) DENYING MOTION TO RECUSE
ALL JUDGES AND MAGISTRATE
JUDGES;

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MICHAEL G. WHEAT,
2) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g);
AND

Defendant.

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(3) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)

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David Scott Harrison (Plaintiff), currently incarcerated at San Quentin State Prison
located in San Quentin, California, and proceeding pro se, has filed a civil rights action
pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388 (1971). (ECF No. 1.)

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Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) when

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he filed this case; instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. § 1915(a) (ECF No. 2). In addition, Plaintiff has filed a “Motion to

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Recuse all Judges and Magistrate Judges of the United States District Court, Southern

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District of California.” (ECF No. 3.)

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I.

Motion for Recusal

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Plaintiff seeks recusal of all the United States District Judges and Magistrate

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Judges of the Southern District of California from this matter pursuant to 28 U.S.C. § 144

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and § 455. (See Pl.’s Mot, ECF No. 3, at 1.) If a party brings a timely § 144 motion, and

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the accompanying affidavit is determined to be legally sufficient, another judge must be

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assigned to hear the matter. See 28 U.S.C. § 144; United States v. Sibla, 624 F.2d 864,

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867 (9th Cir. 1990). An affidavit brought pursuant to § 144 is found to not be legally

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sufficient “unless it specifically alleges facts that fairly support the contention that the

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judge exhibits or prejudice directed toward a party that stems from an extrajudicial

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source.” Id.at 868. However, a motion that is also brought pursuant to § 455 does not

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require the “referral of the question of recusal to another judge” because § 455 includes

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no such provision. Id.

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“‘In the absence of a legitimate reason to recuse himself, a judge has a duty to sit

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in judgment in all cases coming before him,’” United States v. Holland, 501 F.3d 1120,

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1123 (9th Cir. 2007) (citing Laird v. Tatum, 409 U.S. 824, 837 (1972)), “except those in

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which [his] ‘impartiality might reasonably be questioned.’” Id. (citing 28 U.S.C. § 455(a)

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(“[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in

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any proceeding in which his impartiality might reasonably be questioned.”)). A motion

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to disqualify “must be evaluated on an objective basis, so that what matters is not the

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reality of bias or prejudice but its appearance.” Liteky v. United States, 510 U.S. 540, 549

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(1994).

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Here, Plaintiff asserts that “[m]any of the judges and magistrate judges of this
courthouse have been involved in the litigation that has flowed from 1988 to present, and
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are aware of the assertions made by Declarant against Judge Burns.” (Pl.’s Decl., ECF

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No. 3, at 11.) Plaintiff claims that it is his “belief that Declarant cannot ever receive a

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fair or judge adjudication in this courthouse in this case, or in any other case, as a result

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of the declared facts.” (Id.) Plaintiff maintains that “all judges and magistrate judges of

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this courthouse are bias in favor of Burns, and prejudiced against Harrison.” (Pl.’s Mot.,

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ECF No. 3, at 5.)
Under either section, a judge should recuse themselves if “a reasonable person with

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knowledge of all the facts would conclude that the judge’s impartiality might reasonably

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be questioned.” Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th Cir. 1993). Here,

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the Court finds that Plaintiff’s claims are too vague and contain no specific allegations

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relating to this Court or any of the other Southern District Judges and Magistrate Judges,

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other than the claims against United States District Judge Larry Burns who is not

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presiding over this matter. Absent some specific allegation of personal bias, prejudice or

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interest, there is no showing that the Court’s impartiality may reasonably be questioned.

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See Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1980) (“In the absence of specific

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allegations of personal bias, prejudice, or interest, neither prior adverse rulings of a judge

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nor his participation in a related or prior proceeding is sufficient” to require recusal).

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Plaintiff’s conclusory and vague allegations are insufficient to establish bias by this Court

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or that the impartiality of this Court might reasonably be questioned. Plaintiff’s Motion

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to Recuse all District Judges and Magistrate Judges in the Southern District of California

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is DENIED.

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I.

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Motion to Proceed IFP
“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County

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Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however,

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“face … additional hurdle[s].” Id.

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Specifically, in addition to requiring prisoners to “pay the full amount of a filing

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fee,” in “monthly installments” or “increments” as provided by 28 U.S.C.

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§ 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v.
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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act

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(“PLRA”) amended section 1915 to preclude the privilege to proceed IFP:

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. . . if [a] prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim
upon which relief can be granted, unless the prisoner is under
imminent danger of serious physical injury.

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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’

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provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).

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“Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”

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Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

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“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful

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suits may entirely be barred from IFP status under the three strikes rule[.]”). The

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objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner

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litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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“[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both

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before and after the statute’s effective date.” Id. at 1311.

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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,

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which were dismissed on the ground that they were frivolous, malicious, or failed to state

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a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the

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district court styles such dismissal as a denial of the prisoner’s application to file the

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action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153

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(9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)

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(noting that when court “review[s] a dismissal to determine whether it counts as a strike,

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the style of the dismissal or the procedural posture is immaterial. Instead, the central

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question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure

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to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).

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Once a prisoner has accumulated three strikes, he is simply prohibited by section

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1915(g) from pursuing any other IFP civil action or appeal in federal court unless he

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alleges he is facing “imminent danger of serious physical injury.” See 28 U.S.C.

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§ 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP

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complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger

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of serious physical injury’ at the time of filing.”).

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II.

As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and has

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Application to Plaintiff

ascertained that it does not contain any “plausible allegations” to suggest he “faced

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‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at

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1055 (quoting 28 U.S.C. § 1915(g)).

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And while Defendants typically carry the burden to show that a prisoner is not

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entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court

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docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria

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under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here.

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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

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No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

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United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take

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notice of proceedings in other courts, both within and without the federal judicial system,

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if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

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F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803

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n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council

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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).

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Thus, this Court takes judicial notice that Plaintiff has had at least three prior

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prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or

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failed to state a claim upon which relief may be granted. They are:

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1)

Harrison v. Hurst, et al., Civil Case No. 2:93-cv-2196-oh (W.D. Tenn. Feb.

25, 1993) (Order of Dismissal finding complaint frivolous) (strike one);

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2)

Harrison v. Hawk, et al. Civil Case No. 2:93-cv-3086-rmm (W.D.

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Tenn. Jan. 4, 1994) (Memorandum and Order of Dismissal finding action

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frivolous) (strike two);

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3)

Harrison v. Dumanis, et al., Civil Case No. 3:06-cv2470-RLH (S.D.

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Cal. Apr. 18, 2007) (Order granting Motion to Dismiss for failing to state a claim)

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(strike three).
Accordingly, because Plaintiff has, while incarcerated, accumulated three “strikes”

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pursuant to § 1915(g), and he fails to make a “plausible allegation” that he faced

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imminent danger of serious physical injury at the time he filed his Complaint, he is not

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entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055;

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Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.

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§ 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes

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prisoners with a history of abusing the legal system from continuing to abuse it while

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enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)

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(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).

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III.

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Conclusion and Order
For the reasons set forth above, the Court:

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1)

DENIES Plaintiff’s Motion to Recuse [ECF No. 3];

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2)

DENIES Plaintiff’s Motion to Proceed IFP [ECF No. 2] as barred by 28

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U.S.C. § 1915(g);

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3:17-cv-01550-AJB-BLM

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3)

DISMISSES this action without prejudice for failure to pay the full statutory

and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a); and

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4)

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IT IS SO ORDERED.

DIRECTS the Clerk of Court to close the file.

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Dated: September 20, 2017

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