Gowadia vs. Sorenson; et al.

Filing 11

ORDER DENYING MOTION FOR RECONSIDERATION AND REQUEST FOR RECUSAL re 10 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/12/2014. "Plaintiff's Motion for Reconsideration and request for recusal are DENIED. The court again certifies that an appeal would not be taken in good faith. See Fed. R. App. P. 24(a)(3)(A). The Clerk of Court is DIRECTED to process Plaintiff's Notice of Appeal." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Noshir Gowadia shall be served by first class mail at the address of record on August 13, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NOSHIR GOWADIA, FED. REG.
#95518-022,
Plaintiff,
vs.
KENNETH M. SORENSON, et al.,
Defendants.
____________________________

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CIV. NO. 14-00288 SOM/BMK
ORDER DENYING MOTION FOR
RECONSIDERATION AND REQUEST FOR
RECUSAL

ORDER DENYING MOTION FOR RECONSIDERATION AND REQUEST FOR RECUSAL
Before the court is Plaintiff’s letter to the Clerk of
Court, in which he states:
So I am officially informing you that I
wish to appeal (notice of Appeal). Please
set up the appeal and send me the necessary
instructions. In the meantime I will start
working on the opening brief.
Alternately, Court could reconsider
[dismissal of] the Complaint. In that case
Judge Mollway should recuse herself to avoid
even “an appearance . . . .”
Letter Mot., Doc. No. 10, PageID #44.
The court construes Plaintiff’s letter as a Motion for
Reconsideration brought under Rule 59(e) of the Federal Rules of
Civil Procedure, a request for recusal, and a concurrently filed
notice of appeal.

For the following reasons, Plaintiff’s Motion

for Reconsideration and request for recusal are DENIED.

The

Clerk is DIRECTED to process Plaintiff’s notice of appeal without
further delay.

I.

BACKGROUND

On July 7, 2014, Plaintiff filed this prisoner civil
rights suit pursuant to Bivens v. Six Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

Plaintiff alleges

his convictions in United States v. Gowadia, Cr. No. 05-00486 SOM
(D. Haw., Feb. 4, 2011), aff’d App. No. 11-10058 (9th Cir. Jul.
28, 2014), and the civil forfeiture of his home in United States
v. 575 N. Holokai Road, Civ. No. 05-00704 HG (D. Haw. Sep., 6,
2011) (stipulation to dismiss), were obtained on fabricated
evidence, false testimony, prosecutorial misconduct, and a
conspiracy involving the federal prosecutors, investigators, his
mortgage company, and a Bureau of Prisons attorney.

He alleges

“false prosecution” and “false civil forfeiture” and seeks $50
million in damages.

Compl., Doc. No. 1, PageID #4, 11-22.

On July 18, 2014, the court dismissed Plaintiff’s
Complaint as barred by the doctrine of Heck v. Humphrey, 512 U.S.
477, 486-87 (1994), because a judgment in favor of Plaintiff
would necessarily undermine the validity of his conviction and
sentence.

See Order, Doc. No. 8, PageID #38-39.

Plaintiff’s

action was dismissed with prejudice as frivolous and for failure
to state a claim.

Id.

The court warned Plaintiff that this

dismissal could later be considered a strike pursuant 28 U.S.C.
§ 1915(g), if upheld on appeal, and certified that an appeal

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would not be taken in good faith.
entered that day.

Id., PageID #41.

Judgment

Doc. No. 9.

On July 28, 2014, the United States Court of Appeals
for the Ninth Circuit affirmed Plaintiff’s conviction and
sentence in Cr. No. 05-00486 SOM.

See Opinion, Doc. No. 949; see

also App. No. 11-10058 (9th Cir. 2014).

Plaintiff remains

incarcerated at the United States Penitentiary located in
Florence, Colorado (“USP-Florence).
II. LEGAL STANDARDS
A.

Jurisdiction
As a general rule, “[o]nce a notice of appeal is filed,

the district court is divested of jurisdiction over the matters
being appealed.”

See Natural Res. Def. Council, Inc. v. Sw.

Marine Inc., 242 F.3d 1163, 1166 (9th Cir. 2001).

Rule

4(a)(4)(B)(I) of the Federal Rules of Appellate Procedure allows
a district court to amend a judgment, even when a notice of
appeal has been filed, in certain situations.

Appellate Rule

4(a)(4)(B)(i) provides:
If a party files a notice of appeal after the
court announces or enters a judgment - but
before it disposes of any motion listed in
Rule 4(a)(4)(A) - the notice becomes
effective to appeal a judgment or order, in
whole or in part, when the order disposing of
the last such remaining motion is entered.

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Id.

Appellate Rule 4(a)(4)(A) identifies a motion to alter or

amend the judgment under Federal Rule of Civil Procedure 59 as
such a motion.
Appellate Rule 4(a)(4)(B)(i), however, does not specify
how it operates when a motion for reconsideration is filed
concurrently with a notice of appeal.
4(a)(4)(B)(i).

See Fed. R. App. P.

The Transmittal Note to the 1993 Amendment to

Appellate Rule 4(a)(4) states that a “notice [of appeal] filed
before the filing of one of the specified motions or after the
filing of a motion but before the disposition of the motion is,
in effect, suspended until the motion is disposed of, whereupon,
the previously filed notice effectively places jurisdiction in
the court of appeals.”

Although the Ninth Circuit has not

addressed this issue, “recent case law suggests that it would
embrace the Advisory Committee’s interpretation of Appellate Rule
4(a)(4).”

Yousefian v. City of Glendale, No. CV 11–03579, 2013

WL 948743, at *1 (C.D. Cal. Mar. 11, 2013) (citing Crawford v.
Kingdom of Saudi Arabia, CV. No.

11–05206, 2012 WL 3638628, at

*3 (N.D. Cal. Aug. 22, 2012) (noting Ninth Circuit held appeal in
abeyance pending district court resolution of post-judgment
motion filed after notice of appeal but within Rule 4(a)(4)’s 28day time period)).
The court concludes that it has jurisdiction to
consider Plaintiff’s motion for reconsideration because his

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concurrently filed notice of appeal is “in effect, suspended.”
See also Miller v. Marriott Int’l, Inc., 300 F.3d 1061, 1064 (9th
Cir. 2002) (“Under [Appellate] Rule 4(a)(4)(A), the [plaintiffs’]
Rule 60(b) motion prevented the [plaintiffs’] notices of appeal
from becoming effective until the district court rules on the
merits of those motions.”).
B.

Reconsideration Under Rule 59
Plaintiff’s motion is timely filed under Rule 59.

R. Civ. P. 59(e).

Fed.

Under Rule 59(e), a motion for

reconsideration “should not be granted, absent highly unusual
circumstances, unless the district court is presented with newly
discovered evidence, committed clear error, or if there is an
intervening change in the controlling law.”

389 Orange Street

Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999); Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,
880 (9th Cir. 2009).
III.

DISCUSSION

Plaintiff first argues that this civil action is
independent of his criminal proceedings, and that Heck is
therefore inapplicable to his claims.

He argues that “there was

no mention of ‘Heck’ in the trial,” and likens this case to his
appeal pending in the Tenth Circuit, Gowadia v. Stearns, Civ. No.
13-00077 KMT (D. Colo. 2013), in which he challenged the
conditions of confinement at FDC-Honolulu and at USP-Florence.
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Mot., Doc. No. 10, PageID #44.

Plaintiff is mistaken; he is not

challenging the conditions of his confinement in this action.
Rather, he asserts claims challenging the conduct of his criminal
trial.

These claims, if successful, would necessarily imply the

invalidity of Plaintiff’s conviction or sentence in Cr. No. 0500486 SOM.

Under Heck, such claims “must be dismissed unless the

plaintiff can demonstrate that the conviction or sentence has
already been invalidated.”

512 U.S. at 487.

In light of the

Ninth Circuit’s decision of July 28, 2014, affirming Plaintiff’s
conviction, he cannot show such invalidation.

This action must

accordingly be dismissed.
Plaintiff next argues that his civil cases in the
District Court for the District of Columbia, Civ. Nos. 13-01991
RC, 14-00710 UNA, and 14-00688 UNA, are proceeding, were not
found frivolous, and “were [found] more than sufficient for
Bivens remedy.”

Doc. No. 10, PageID #44.

First, it is

immaterial to the present action whether Plaintiff’s complaints
in other cases are deemed sufficient to proceed.
Plaintiff’s statement is misleading.

Second,

The District of Columbia

dismissed Gowadia v. U.S. Air Force, Civ. No. 14-00688 UNA, and
Gowadia v. FBI, Civ. No. 14-00710 UNA, for failure to state a
claim as barred by Heck; they were not deemed “more than

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sufficient” for relief under Bivens.1

Id.

The District of

Columbia has not ruled on the sufficiency of Plaintiff’s claims
in Gowadia v. IRS, Civ. No. 13-01991.

Rather, Plaintiff was

ordered to show cause why that action should not be dismissed for
failure to prosecute, and a decision regarding his response is
pending.
Plaintiff challenges this court’s earlier ruling
because “[t]here is no immunity for Constitutional ‘Due
Process.’”

Id., PageID #45.

This court made no ruling on

Defendants’ immunities or on any due process claims Plaintiff
raised.

Plaintiff is apparently confusing the present action

with Gowadia v. Sterns, Civ. No. 13-00077 KMT (D. Colo. 2013), in
which he unsuccessfully raised due process claims.
on appeal in the Tenth Circuit.

That case is

See id., Doc. No. 59.

According to Plaintiff, this court incorrectly stated
that his dismissals in the District of Columbia, Civ. Nos. 130688 and 14-00710, and in the present case “will be considered as
strikes.”

Id.

Plaintiff misquotes the court’s Order, which

clearly states, “Gowadia is NOTIFIED that these three dismissals
will be considered strikes under 28 U.S.C. § 1915(g), unless they
are overturned on appeal.”
(emphasis added).

Order, Doc. No. 8, PageID #41

See Silva v. Di Vittorio, 658 F.3d 1090, 1100

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Plaintiff has moved for reconsideration in Civ. No. 1400710 UNA and has taken an appeal in Civ. No. 14-00688 UNA.
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(9th Cir. 2011).

This notification correctly states Ninth

Circuit law.
This court is not persuaded to reconsider its earlier
ruling on the basis that Plaintiff does “not recall ever seeing
or hearing about ‘stipulation to dismissal with prejudice to any
challenge to the civil forfeiture.’”
#45.

Plaintiff’s attorney signed the Stipulation on Plaintiff’s

behalf on September 1, 2011.
254.

Mot., Doc. No. 10, PageID

See Civ. No. 05-00704 HG, Doc. No.

The Stipulation states in pertinent part:
Based on the foregoing, and pursuant to Rule
41(a)(2) of the Federal Rules of Civil
Procedure, the parties hereby agree and
stipulate, by and through their respective
counsel undersigned, that the above-entitled
action be dismissed with prejudice, and each
party shall bear its own costs.

Id., PageID #1156.

Plaintiff did not appeal, and the time for

doing so expired long ago.

See Fed. R. App. P. 4(a).

Plaintiff, arguing that Heck requires dismissal without
prejudice, directs the court to “the words in Heck.”
No. 10, PageID #45.

Mot., Doc.

Heck is silent as to whether a dismissal

pursuant to its rule should be with or without prejudice.

A

district court has discretion to dismiss with prejudice or grant
leave to amend under the Prison Litigation Reform Act, however.
See Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012); Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).

This court,

concluding that Plaintiff’s pleading cannot be cured by the

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allegation of additional facts, has exercised its discretion to
dismiss the Complaint with prejudice.
Plaintiff complains that only the Ninth Circuit can
certify his appeal as frivolous and not taken in good faith.
is incorrect.

He

Pursuant to Rule 24 of the Federal Rules of

Appellate Procedure, the district court must first determine
whether an appeal is taken in good faith so that a party with in
forma pauperis status may maintain that status on appeal.

If the

district court does not find good faith, the litigant may move in
the appellate court for leave to proceed in forma pauperis,
notwithstanding the district court’s decision.
24(a)(5).

Fed. R. App. P.

This court found that Plaintiff’s claims were legally

frivolous, as is his repeated assertion of the same issues
despite clear notice from the District of Columbia that they are
not presently legally cognizable.

See Neitzke v. Williams, 490

U.S. 319, 325 (1989) (defining “frivolous” as lacking arguable
basis in fact or law); Coppedge v. United States, 369 U.S. 438,
445 (1962) (holding that appeal of frivolous issue is itself
frivolous).
Finally, Plaintiff argues that the undersigned judge
should have recused herself “like Judge Chang did because even
‘an appearance of impropriety, or a conflict of interest, or any
reasonable question regarding impartiality.’”

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Mot., Doc. No. 10

at PageID #46.

The court construes this request as brought under

28 U.S.C. § 455.2
In the Ninth Circuit, a judge should disqualify herself
“in any proceeding in which [her] impartiality might reasonably
be questioned.”

Beverly Hills Bancorp v. Hine, 752 F.2d 1334,

1341 (9th Cir. 1984).

However, “[u]nfavorable rulings alone are

legally insufficient to require recusal, even when the number of
such unfavorable rulings is extraordinarily high on a statistical
basis.”

Id. (citing Botts v. United States, 413 F.2d 41, 44 (9th

Cir. 1969); In re Int’l Bus. Machs. Corp., 618 F.2d 923, 929-30
(2d Cir. 1980)); see also Leslie v. Grupo ICA, 195 F.3d 1152,
1160 (9th Cir. 1999) (“[The plaintiff’s] allegations stem
entirely from the district court judge’s adverse rulings.

That

is not an adequate basis for recusal.”).
“[E]ven when the judge is initially named in a lawsuit,
where the allegations are so palpably lacking in merit and
integrity, the judge may, and should remain in the case to deal
with the spiteful plaintiff.”

Mellow v. Sacramento Cnty., 2008

WL 2169447, at *3 (E.D. Cal. May 23, 2008); United States v.
Majhor, 2010 WL 3522382, at *1 n. 1 (D. Or. Sept. 3, 2010);

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Although the motion is addressed to the Clerk, this court
rules on the recusal issue itself. See United States v.
Champlin, 388 F. Supp. 2d 1177, 1180 (D. Haw. 2005) (“Because
both the language of § 455 and the Ninth Circuit precedent
interpreting § 455 indicate that the judge to whom a § 455 motion
is directed should decide the motion, this court will rule on the
defendants’ motion for recusal.”).
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United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (“A
judge is not disqualified by a litigant’s suit or threatened suit
against him, or by a litigant’s intemperate and scurrilous
attacks.” (citation and quotation marks omitted)).
Plaintiff’s argument, while unclear, is

apparently

that this judge may not handle this case because she presided
over his criminal jury trial and was aware of his forfeiture case
as Chief Judge of the District of Hawaii.

Plaintiff sets forth

no examples raising the appearance of bias, impropriety, or
prejudice occurring during or after his trial.

He points to no

rulings, statements, or other reasons, specific or general,
giving the appearance of bias or prejudice against him.

The

court is not aware of the reasons for Magistrate Judge Chang’s
recusal in this matter, and those reasons do not necessarily
require this court’s recusal.

Plaintiff’s request for recusal is

DENIED.
IV.

CONCLUSION

Plaintiff sets forth no intervening change in
controlling law, new evidence, or need to correct clear error or
prevent manifest injustice persuading this court to reconsider
its decision.

See White v. Sabatino, 424 F. Supp. 2d 1271, 1274

(D. Haw. 2006) (citing Mustafa v. Clark County Sch. Dist., 157
F.3d 1169, 1178-79 (9th Cir. 1998)).

Plaintiff’s Motion for

Reconsideration and request for recusal are DENIED.

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The court

again certifies that an appeal would not be taken in good faith.
See Fed. R. App. P. 24(a)(3)(A).

The Clerk of Court is DIRECTED

to process Plaintiff’s Notice of Appeal.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 12, 2014.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Gowadia v. Sorenson, et al., 14-00288 SOM; recon 2014 Gowadia 14-288 som (R59 NOA FTSC
HECK); J:\Denise's Draft Orders\SOM\Gowadia 14-288 som (R59 NOA re. FTSC Heck bar).wpd

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