(PS) Alston v. LLoyd ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC A. ALSTON, JR., No. 2:18-cv-02420-TLN-CKD 12 Plaintiff, ORDER 13 v. 14 COUNTY OF SACRAMENTO ET AL., 15 Defendants. 16 17 18 Plaintiff Eric A. Alston, Jr. (“Plaintiff”) appearing pro se, brings the instant civil action. 19 The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) 20 and Local Rule 302. 21 On November 19, 2020, the magistrate judge filed findings and recommendations herein 22 which were served on the parties and which contained notice that any objections to the findings 23 and recommendations were to be filed within fourteen days. (ECF No. 76.) On November 23, 24 2020, Plaintiff filed objections to the Findings and Recommendations. (ECF No. 77.) 25 This Court reviews de novo those portions of the proposed findings of fact to which 26 objection has been made. 28 U.S.C. § 636(b)(1); McDonnell Douglas Corp. v. Commodore 27 Business Machines, 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982); see 28 also Dawson v. Marshall, 561 F.3d 930, 932 (9th Cir. 2009). As to any portion of the proposed 1 findings of fact to which no objection has been made, the Court assumes its correctness and 2 decides the motions on the applicable law. See Orand v. United States, 602 F.2d 207, 208 (9th 3 Cir. 1979). The magistrate judge’s conclusions of law are reviewed de novo. See Britt v. Simi 4 Valley Unified Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 5 Having carefully reviewed the entire file under the applicable legal standards, the Court 6 finds the Findings and Recommendations to be supported by the record and by the magistrate 7 judge’s analysis. 8 In his Objections to the Findings and Recommendations, Plaintiff requests that Magistrate 9 Judge Carolyn Delaney be recused and/or disqualified due to purported abuse of discretion and an 10 alleged failure to be impartial. (ECF No. 77 at 1–4.) The Court finds this request is wholly 11 without merit. A motion to disqualify a judge cannot be granted absent a clear showing of “deep- 12 seated favoritism or antagonism that would make fair judgment impossible.” United States v. 13 McTiernan, 695 F.3d 882, 891–92 (9th Cir. 2012) (quoting Liteky v. United States, 510 U.S. 540, 14 555 (1994)). Even “judicial remarks . . . that are critical or disapproving of, or even hostile to, 15 counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” Id. at 16 892; see also Liteky, 510 U.S. at 555 (“[J]udicial rulings alone almost never constitute a valid 17 basis for a bias or partiality motion.”). 18 Upon review of the record, the Court finds zero support for Plaintiff’s claims of bias or 19 other reason to question the magistrate judge’s impartiality. To the contrary, the recommendation 20 to grant summary judgment on Plaintiff’s excessive force, California Bane Act, and battery 21 claims was based on security video footage that utterly discredited Plaintiff’s allegations, as well 22 as Plaintiff’s own retreat from the Complaint’s excessive force language during his deposition 23 testimony.1 (See ECF No. 69 at 7–9.) Indeed, the Court cannot imagine a more impartial and 24 1 To the extent Plaintiff additionally purports to challenge the propriety of Judge Delaney’s 25 other rulings throughout the course of this litigation, such as her recommendation to grant Defendants’ October 17, 2018 Motion to Dismiss, Plaintiff’s arguments are equally without merit. 26 Rather, the Court notes that each of the contested rulings by Judge Delaney was issued in the 27 form of findings and recommendations, which this Court adopted in full, and which Plaintiff failed to timely contest or otherwise seek reconsideration. (See, e.g., ECF Nos. 20, 23, 41, 45, 56, 28 59.) 1 objective ruling than one that is based upon clear video footage that, as here, has not been 2 challenged as doctored or altered in any way. (See generally ECF No. 72 (Plaintiff’s Opposition 3 does not challenge authenticity of video but relies on it for certain arguments)); see also Scott v. 4 Harris, 550 U.S. 372, 378 (2007). As such, to the extent Plaintiff’s objections may be construed 5 as a Request to Recuse/Disqualify Magistrate Judge Carolyn Delaney, Plaintiff’s Request is 6 hereby DENIED. 7 Plaintiff’s remaining Objections appear to claim some form of fraud in the proceedings. 8 (See ECF No. 77 at 5–8.) However, these arguments lack any non-conclusory factual predicate or 9 other support. Therefore, Plaintiff’s remaining objections are overruled. 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. The Findings and Recommendations filed November 18, 2020 (ECF No. 76), are 12 adopted in full; 13 2. Defendant’s Motion for Summary Judgment (ECF No. 69) is GRANTED; 14 3. Plaintiff’s Request to Recuse/Disqualify Magistrate Judge Carolyn Delaney is 15 DENIED; 16 4. This action is DISMISSED with prejudice; and 17 5. The Clerk of Court is directed to close this case. 18 IT IS SO ORDERED. 19 DATED: December 14, 2020 20 21 22 23 24 25 26 27 28