Williams v. Hampton et al

Filing 22

ORDER Denying Second Objection [Doc. No. 21 ]. Signed by Judge Cathy Ann Bencivengo on 9/15/2020. (All non-registered users served via U.S. Mail Service)(anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 LANCE WILLIAMS, CDCR #AG-2394, ORDER DENYING SECOND OBJECTION [Doc. No. 21] Plaintiff, 13 vs. 14 15 Case No.: 3:19-cv-1332-CAB-WVG SERGEANT S. HAMPTON, et al., Defendants. 16 17 18 19 20 21 Pending before the Court is Plaintiff’s “Second Objection to Screening, Motion to 22 23 Recuse Current Judges, Notice of Complaint to Judicial Council and Notice of filing of 24 Amended Complaint” (hereinafter the “Second Objection”). [Doc. No. 21.] For the 25 reasons set forth below, the Second Objection is DENIED. 26 ///// 27 ///// 28 1 1 I. Procedural Background 2 Lance Williams (“Plaintiff”), a prisoner incarcerated at California Men’s Colony 3 (“CMC”) located in San Luis Obispo, California, and proceeding pro se, filed this civil 4 rights action pursuant to 42 U.S.C. § 1983 on July 17, 2019. [See Compl., Doc. No. 1.] 5 Williams did not prepay the civil filing fee required to commence a civil action at the 6 time he filed his Complaint; instead, he filed a certified copy of his prison trust account 7 statement which the Court liberally construed as a Motion for Leave to proceed In Forma 8 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2]. 9 On September 13, 2019, this Court reviewed Plaintiff’s Complaint as well as his 10 litigation history and denied his Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(g). 11 [See Doc. No. 5.] The Court identified seven prior federal civil actions and appeals filed 12 by Plaintiff in federal court while he was incarcerated that were dismissed as frivolous or 13 for failing to state a claim, and further found his Complaint contained no plausible 14 allegations to suggest he faced “imminent danger of serious physical injury” at the time 15 he filed it. [See Doc. No. 5 at 4-7.] Therefore, the Court dismissed Plaintiff’s case without 16 prejudice based on his failure to prepay the filing fees required by 28 U.S.C. § 1914(a). 17 Id. at 7. 18 Plaintiff appealed, and on April 2, 2020, the Ninth Circuit reversed this Court’s 19 IFP determination and remanded the case for further proceedings. [Doc. No. 11.] The 20 case was re-opened for further proceedings consistent with the Ninth Circuit’s judgment. 21 On May 5, 2020, the Court GRANTED Plaintiff’s Motion to Proceed IFP, 22 DISMISSED claims and defendants for failing to state a claim, and gave Plaintiff the 23 option to file an amended pleading or proceed with his First Amendment retaliation 24 claims against Defendants Tiscornia, Hampton, Gonzalez, Grijalva, and Covello only. 25 [Doc. No. 14.] 26 27 Plaintiff chose the first option and filed his First Amended Complaint (“FAC”) on June 5, 2020. [Doc. No. 15.] 28 2 1 On June 26, 2020, the Court issued an order dismissing claims and defendants for 2 failing to state a claim and as frivolous and directing the U.S. Marshal to effect service of 3 the FAC on the remaining defendants (hereinafter “the Court’s June 26 Order”). [Doc. 4 No. 16.] On July 16, 2020, Plaintiff filed a motion for reconsideration of the Court’s June 5 6 26 Order. [Doc. No. 18.] On August 18, 2020, the Court denied the motion for 7 reconsideration. [Doc. No. 19.] 8 9 On September 14, 2020, Plaintiff filed the Second Objection. [Doc. No. 21.] II. Discussion. 10 A. Second Objection. 11 Plaintiff continues to object to the Court’s June 26 Order. For the reasons set forth 12 in the order denying the motion for reconsideration, Plaintiff’s “second” objections are 13 DENIED. Plaintiff is free to appeal this Court’s June 26 Order to the Ninth Circuit Court 14 of Appeals at the appropriate time. In the meantime, this case will proceed on the FAC 15 as to the remaining defendants, as set forth in the Court’s June 26 Order. Plaintiff is 16 reminded to complete the USM Form 285 as soon as possible and return it to the U.S. 17 Marshal, so that service of the FAC may be accomplished timely. See Doc. No. 16 at 20- 18 21. 19 B. Motion to Recuse; Notice of Complaint to Judicial Council. 20 Plaintiff requests that the current judges be recused from this case. However, 21 being dissatisfied with the Court’s rulings is not grounds for judicial recusal. See 28 22 U.S.C. §455(a); Liteky v. United States, 510 U.S. 540, 553 (1994). Plaintiff’s assertion 23 that he is going to file a complaint with the judicial council is also insufficient grounds 24 for recusal. Id. 25 C. Notice of filing Amended Complaint. 26 Plaintiff has NOT been granted leave to file a Second Amended Complaint. If 27 Plaintiff attempts to file a Second Amended Complaint, it will be rejected. In the 28 3 1 meantime, this case shall proceed on the FAC as to the remaining defendants, as set forth 2 in the Court’s June 26 Order. If the FAC is not timely served, the case will be subject to 3 dismissal in its entirety. 4 III. Conclusion. 5 6 7 8 For the reasons set forth above, the Second Objection is DENIED. Any further objections or motions for reconsideration of the Court’s June 26 Order will be rejected. IT IS SO ORDERED. Dated: September 15, 2020 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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