(PC) Sierra v. CDCR Director

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — — 7 — 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA — 10 — 11 KENNETH ALAN SIERRA, No. 2:17-cv-2611 KJM AC P 12 Plaintiff, 13 v. ORDER 14 CDCR DIRECTOR, et al., 15 Defendants. — 16 — 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983 . Currently before the court are plaintiff’s motions for extensions of time, ECF 19 Nos. 55, 59, appointment of counsel, ECF No. 57, recusal of the undersigned magistrate judge, 20 ECF No. 58, and a court order, ECF No. 63. 21 I. Motions for Extension of Time 22 Plaintiff has filed a request for an extension of time to file objections to the September 6, 23 2019 order denying his various motions to amend, ECF No. 52. ECF No. 55. Subsequently, he 24 filed his objections to the order. ECF No. 61. The motion will be granted and plaintiff’s 25 objections under Federal Rule of Civil Procedure 72(a) will be deemed timely. 26 Plaintiff has also filed a second request for a thirty-day extension of time to file an 27 amended complaint. ECF No. 59. In light of the pending objections to the order dismissing the 28 first amended complaint with leave to amend, ECF No. 56, plaintiff’s deadline to file an amended 1 complaint will be vacated and re-set, if necessary, after the District Judge rules on the objections. 2 The motion for an extension of time will therefore be denied as moot. 3 II. Motion for Appointment of Counsel 4 Plaintiff has filed another request for the appointment of counsel. ECF No. 57. The 5 United States Supreme Court has ruled that district courts lack authority to require counsel to 6 represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296 , 7 298 (1989). In certain exceptional circumstances, the district court may request the voluntary 8 assistance of counsel pursuant to 28 U.S.C. § 1915 (e)(1). Terrell v. Brewer, 935 F.2d 1015 , 1017 9 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 10 “When determining whether ‘exceptional circumstances’ exist, a court must consider ‘the 11 likelihood of success on the merits as well as the ability of the [plaintiff] to articulate his claims 12 pro se in light of the complexity of the legal issues involved.’” Palmer v. Valdez, 560 F.3d 965 , 13 970 (9th Cir. 2009) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). The burden 14 of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to 15 most prisoners, such as lack of legal education and limited law library access, do not establish 16 exceptional circumstances that would warrant a request for voluntary assistance of counsel. 17 Plaintiff requests appointment of counsel on the grounds that he is disabled and bedridden 18 due to a nerve disorder which affects his vision and ability to write. ECF No. 57. However, 19 plaintiff has so far demonstrated that he is capable of filing numerous motions and prosecuting 20 this case without the assistance of counsel. Furthermore, because the first amended complaint has 21 been dismissed and there is currently no complaint pending, the court is unable to assess 22 plaintiff’s likelihood of success on the merits. Therefore, at this time the court does not find 23 exceptional circumstances to necessitate the appointment of counsel and the motion for the 24 appointment of counsel will be denied without prejudice. 25 III. Motion for Recusal 26 Plaintiff has moved for recusal of the undersigned. ECF No. 58. Said motion is properly 27 before the undersigned, as the Ninth Circuit has “held repeatedly that the challenged judge 28 h[er]self should rule on the legal sufficiency of a recusal motion in the first instance.” United 1 States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (citing United States v. Azhocar, 581 F.2d 2 735, 738 (9th Cir. 1978)). If the affidavit is legally insufficient, then recusal can be denied. 3 United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995). 4 “Whenever a party to any proceeding in a district court makes and files a timely and 5 sufficient affidavit that the judge before whom the matter is pending has a personal bias or 6 prejudice either against him or in favor of any adverse party, such judge shall proceed no further 7 therein.” 28 U.S.C. § 144 . “Any justice, judge, or magistrate judge of the United States shall 8 disqualify h[er]self in any proceeding in which h[er] impartiality might reasonably be 9 questioned.” 28 U.S.C. § 455 (a). Under both recusal statutes, the substantive standard is 10 “whether a reasonable person with knowledge of all the facts would conclude that the judge’s 11 impartiality might reasonably be questioned.” Studley, 783 F.2d at 939 (quoting Mayes v. 12 Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (internal quotation marks omitted)). 13 Plaintiff’s motion for recusal does not set out any reasons for the recusal, and instead 14 generally refers the court to his objections to the July 31, 2019 findings and recommendations. 15 ECF No. 58. The objections specifically address recusal in only a few instances. ECF No. 56 at 16 10, 13-14, 16, 19. In those instances, plaintiff argues that the undersigned should be disqualified 17 because the screening of the complaint demonstrates clear prejudice toward plaintiff. Id. at 10. 18 He further alleges that the undersigned’s denial of counsel, in light of the comments as to the 19 legibility of plaintiff’s handwriting, evidences bias and prejudice. Id. at 13-14, 16. 20 Construing the objections broadly, nearly all of plaintiff’s allegations of bias or prejudice 21 are related to the undersigned’s screening of the complaint and denial of counsel in this action. 22 However, recusal “is required ‘only if the bias or prejudice stems from an extrajudicial source and 23 not from conduct or rulings made during the course of the proceeding.’” Pau v. Yosemite Park & 24 Curry Co., 928 F.2d 880, 885 (9th Cir. 1991) (quoting Toth v. TransWorld Airlines, 862 F.2d 25 1381, 1388 (9th Cir. 1988)). To the extent plaintiff bases his motion for recusal on a single 26 comment related only to the legibility of portions of his original complaint, which is not the 27 operative complaint, these allegations also fail to demonstrate bias. 28 //// 1 Plaintiff’ allegations of bias are legally insufficient to establish a reasonable question as 2 || to the undersigned’s impartiality or that a bias or prejudice exists. The request for recusal will 3 | therefore be denied. 4 IV. Motion for Court Order 5 Plaintiff has filed a motion for a court order directing the Clerk of the Court to locate an 6 | order from another case that was issued sometime between 1980 and 1985. ECF No. 63. Even if 7 || the court were inclined to provide plaintiff with a courtesy copy of the order he seeks, he has 8 || failed to sufficiently identify the order. Furthermore, a review of this court’s electronic records 9 | shows that the first case plaintiff initiated in this court was filed in 1998. Accordingly, it appears 10 | that this was not the court in which the order was issued, and if plaintiff wants a copy, he must 11 || request a copy from the court that issued the order. The motion will therefore be denied. 12 Accordingly, IT IS HEREBY ORDERED that: 13 1. Plaintiff's request for an extension of time to file objections, ECF No. 55, is granted 14 | and his objections to the September 6, 2019 order are deemed timely. 15 2. Plaintiff's deadline to file an amended complaint is vacated and will be re-set, if 16 || necessary, after the District Judge rules on his objections to the screening order. Plaintiffs 17 || request for an extension of time to file an amended complaint, ECF No. 59, is therefore denied as 18 | moot. 19 3. Plaintiff’s motion for the appointment of counsel, ECF No. 57, is denied without 20 || prejudice. 21 4. Plaintiff’s motion for recusal, ECF No. 58, is denied. 22 5. Plaintiff’s motion for a court order, ECF No. 63, is denied. 23 || DATED: December 12, 2019 ~ 24 CtAt0r2— Chane ALLISON CLAIRE 25 UNITED STATES MAGISTRATE JUDGE — 26 — — 27 — — 28 —