Felita Sample v. Frank O'Hara , 481 F. App'x 319 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 06 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FELITA SAMPLE, No. 11-16231
Plaintiff - Appellant, D.C. No. 3:10-cv-05882-SI
v.
MEMORANDUM*
FRANK O’HARA; TINA BELL; FIRST
TRANSIT, INC.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted June 29, 2012**
San Francisco, California
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Plaintiff Felita Sample appeals the district court judgment dismissing her pro
se action against First Transit, Inc. (“First Transit”) and two of its employees
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(collectively “Defendants”). Sample’s complaint alleges that Defendants violated
federal law by failing to reserve seating for disabled passengers on a school bus it
operates and by discriminating against Sample. The district court dismissed
Sample’s action with prejudice for failure to state a claim. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Sample argues on appeal that Judge Susan Illston was required to recuse
herself from Sample’s case. Sample claims that Judge Illston had rendered an
adverse decision against her in a previous case and that Judge Illston is currently
involved in a “disability proceeding for judicial misconduct.” Sample also argues
that the district court should not have granted Defendants’ motion to dismiss
before Defendants filed an answer to her complaint.
Judge Illston was not required to recuse herself from hearing Sample’s case.
Sample has not presented evidence of any past case in which Judge Illston ruled
against her, and in any event “[u]nfavorable rulings alone are legally insufficient to
require recusal.” Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir.
1984). Nor has Sample substantiated her allegation that Judge Illston is involved
in a proceeding for disability or judicial misconduct. In the absence of any such
evidence, it is impossible to determine whether there is in fact any such proceeding
or whether it could have affected Judge Illston’s impartiality. We therefore reject
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Sample’s argument that Judge Illston acted improperly in declining sua sponte to
recuse herself from the case.
We also reject Sample’s argument that Judge Illston erred in ruling on
Defendants’ motion to dismiss before Defendants filed an answer to Sample’s
complaint. Although Federal Rule of Civil Procedure 12 prescribes a time period
within which a defendant must file an answer to a complaint, the filing of a motion
pursuant to Rule 12(b) tolls the answering deadline until the district court rules on
the motion. See, e.g., 5B Fed. Prac. & Proc. Civ. § 1346 (3d ed.) § 1346: Service
of Responsive Pleadings—Time for Serving and Filing.
AFFIRMED.
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