Barren v. Roger et al

Filing 56

ORDER Denying 54 Plaintiff's Motion to Change Venue. Signed by Judge Roger L. Hunt on 3/18/14. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GREGORY D. BARREN, SR.,

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Plaintiff,

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vs.

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DAVID ROGER, OFFICER T. ROBINSON;
OFFICER R. KENT; OFFICER D. SHANE,

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Case No.: 2:-11-cv-650-RLH-CWH
ORDER
(Motion to Change Venue – #54)

Defendants.
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Before the Court is Plaintiff Gregory D. Barren, Sr.’s Motion for Change of
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Venue (#54, Feb. 11, 2014 ). The Court has also considered Defendants Terry Robinson, Raymon
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Kent, and Donald Shane’s (collectively “Officers”) Opposition (#55, Feb. 28, 2014 ). Plaintiff did
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not file a Reply. For the reasons discussed below, the Court denies Plaintiff’s motion.
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BACKGROUND
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This case is a civil rights action based on an unreasonable search and seizure and a
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deprivation of due process. Plaintiff filed his complaint on August 3, 2011. Upon Officers’
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motion, the Court dismissed the complaint without prejudice for failure to state a claim. Plaintiff
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AO 72
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sought to have the case “reinstated,” which this Court construed as a motion for reconsideration.

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The Court denied Plaintiff’s reconsideration motion and Plaintiff appealed that denial.

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The Ninth Circuit found that this Court properly dismissed Plaintiff’s Complaint because

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Plaintiff named the Officers only in their official capacities while failing to allege a municipal

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policy or custom. However, reasoning that “it would not be apparent to a pro se litigant that

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dismissal without prejudice would allow amendment,” the Ninth Circuit remanded to this Court to

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consider Plaintiff’s “request for reinstatement as a request for leave to amend.” On remand,

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applying the amendment standard, the Court readily allowed Plaintiff to file an amended

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complaint, which he has done. Now, Plaintiff seeks to “change venue” because Plaintiff believes

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“this Court had error in its adjudication because of its lack of attention to pertinent issues that if

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taken into fair consideration . . . the case could have had a different outcome.” (#54 at 2).

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Construing this request broadly, the Court considers both whether a change in venue and whether

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recusal of the District Judge are warranted in the interests of justice.

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DISCUSSION

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As to venue, a district court “may transfer any civil action to any other district or

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division where it might have been brought or to any district or division to which all parties have

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consented,” “[f]or the convenience of parties and witnesses, in the interest of justice.” 28 U.S.C. §

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1404(a).

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Here, Plaintiff has not shown that there is anything inconvenient about this forum.

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Plaintiff and Officers are all residents of Nevada. Therefore, the District of Nevada is the only

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venue where this case may have been brought. Additionally, Officers have not consented to

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transfer. The most convenient forum for the parties and witnesses is the District of Nevada. For

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those reasons, the request to change venue is denied.

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As to disqualification, a judge must “disqualify himself in any proceeding in which

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his impartiality might reasonably be questioned,” and in cases “[w]here he has a personal bias or

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prejudice concerning a party.” 28 U.S.C. § 455. To demand disqualification, the movant must

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establish that the judge manifests opinions that “display a deep-seated favoritism or antagonism

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that would make fair judgment impossible.” See Liteky v. United States, 510 U.S. 540, 555 (1994).

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Plaintiff’s request is based on this Court’s prior dismissal of the Complaint and denial of

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“reinstatement.” However, Plaintiff has not shown that there is any favoritism or antagonism that

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would make fair judgment impossible. The Court notes the Ninth Circuit found that this Court

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properly dismissed Plaintiff’s Complaint. Therefore, there was no error in adjudication. The sole

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basis for remand was for the Court to construe Plaintiff’s request under a different legal standard.

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The Court has done so and ruled in Plaintiff’s favor on that basis allowing him to file an amended

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complaint. Plaintiff has not identified this Court’s personal bias or prejudice against him. Neither

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has Plaintiff established that this Court manifests opinions that display a favoritism in favor of

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Officers or antagonism against Plaintiff that would make fair judgment impossible.” Therefore, as

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Plaintiff has failed to meet his burden to show disqualification is warranted, the motion is denied.

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CONCLUSION

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Accordingly, and for good cause appearing,

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IT IS HEREBY ORDERED that Plaintiff’s Motion for Change of Venue (#54, Feb.

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11, 2014 ) is DENIED.
Dated: March 18, 2014.

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____________________________________
ROGER L. HUNT
United States District Judge

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AO 72
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