(PC) Lewis v. Gipson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DARONTA TYRONE LEWIS, Case No. 1:20-cv-00574-JLT-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO TAKE JUDICIAL NOTICE; 13 v. CONSTRUING MOTION FOR RULING ON AMENDED COMPLAINT AS MOTION 14 S. SHERMAN, S. SMITH, FNU SMITH, SEEKING LEAVE TO FILE AN AMENDED FNU JOHNSON, FNU PIPER, NIKKI COMPLAINT AND DIRECTING RESPONSE 15 JOHNSON, J. JIMENEZ, STATE OF WITHIN TWENTY-ONE DAYS; GRANTING CALIFORNIA, CDCR, MOTION FOR ACKNOWLEDGEMENT OF 16 AMENDED COMPLAINT, AND DENYING Defendants. MOTION TO DISQUALIFY JUDGES AND 17 FOR RULING ON AMENDED COMPLAINT 18 (Doc. Nos. 150, 153, 154, 157) 19 20 Pending before the Court are several of Plaintiff’s motions, which the Court addresses 21 together to the extent each are related: (1) second motion to take judicial notice filed on June 21, 22 2022; (2) “motion for ruling on Amended Complaint” filed on July 11, 2022, construed to be a 23 motion for leave to file an amended complaint; (3) “motion for acknowledgment of 404 Page 24 Amended Complaint” filed on July 8, 2022; and (4) Plaintiff’s motion to disqualify judges and for 25 ruling on amended complaint” filed on July 29, 2022. (Doc. Nos. 150, 153, 154, 157). 26 Motion for Judicial Notice (Doc. No. 150). 27 In this motion, Plaintiff requests the Court to take judicial notice of his “404 page 28 1 amended complaint,” which he states was “legally mailed” on June 5, 2022, processed on 2 Monday, June 6, 2022, and mailed to the Court on Tuesday, June 7, 2022. (Doc. No. 150 at 1). 3 Plaintiff also states the Clerk of Court received his 404-page complaint and returned it because a 4 correctional officer had opened it and disorganized it. (Id. at 2). The Court construes the motion 5 as also requesting the Court to take judicial notice that the Clerk returned Plaintiff’s “404 page 6 amended complaint” because correctional officials disorganized it. (Id.). 7 A review of the docket reveals the Court denied Plaintiff’s previous request for judicial 8 notice regarding the filing date of the amended complaint on June 8, 2022. (Doc. No. 149). 9 Federal Rule of Evidence 201 permits a court to take judicial notice of facts that are “not subject 10 to reasonable dispute” because they are either “generally known within the trial court's territorial 11 jurisdiction,” or they “can be accurately and readily determined from sources whose accuracy 12 cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court may take judicial notice on 13 its own or at the request of any party. Id. 201(c). At the time the June 8, 2022 Text Only Order 14 issued, no amended complaint appeared on the docket. However, the docket reveals that on July 15 8, 2022 an amended complaint consisting of 404 pages was filed by the Clerk of Court on behalf 16 of Plaintiff. (Doc. No. 152). As previously explained in its June 8, 2022 Text Only Order, the 17 Court cannot take judicial notice of the fact whether Plaintiff delivered a 404 page first amended 18 complaint to correctional officials for mailing on a specified date and/or the reasons for its return 19 as no docket entry appears on the Court’s docket regarding same. Thus, this motion is denied. 20 Motion for Ruling on Amended Complaint (Doc. No. 153) 21 Plaintiff request the Court to issue a ruling on his amended complaint. (Doc. No. 153). 22 Plaintiff initiated this action by filing a complaint on April 14, 2020. (Doc. No. 1). After 23 screening, Defendants filed an Answer to the Complaint on October 20, 2021. (Doc. No. 123). 24 Because Defendants have filed an Answer to the Complaint, Plaintiff may not amend his 25 complaint as a right but can only amend with the consent of Defendants or with leave of court. 26 Fed. R. Civ. P. 15(a)(2). Consequently, the Court construes the pleading as a motion for leave to 27 file amended complaint. Defendants shall file a response to this motion within 21 days. Local 28 Rule 230(l)(E.D. Cal. 2022). 1 Motion to Acknowledge Filing of the Amended Complaint (Doc. No. 154). 2 Plaintiff seeks confirmation the amended complaint was filed in this action. (See 3 generally Doc. No. 154). Plaintiff submits that he does “not trust Kern Valley State Prison 4 officials . . . nor [the] mailroom.” (Id. at 2). Plaintiff attaches letterhead from the Clerk of Court’s 5 Office that appears to be dated May 31, 2022, returning an unidentified document to Plaintiff 6 because the case number was not located on the first page. (Id. at 5). The letterhead contains a 7 checkmark beside the space that requires a case number on all documents submitted for filing. 8 (Id. at 4). 9 Supra, the Clerk of Court docketed on behalf of Plaintiff a lodged amended complaint on 10 July 8, 2022. (Doc. No. 152). To the extent Plaintiff requests acknowledgement that the Court is 11 in receipt of his complaint filed on July 8, 2022 the motion is granted. To the extent the issue of 12 whether Plaintiff previously sent his amended complaint earlier and it was returned is relevant 13 will be addressed by the Court will be addressed at a future time, if relevant. Thus, Plaintiff’s 14 motion to acknowledge filing of the amened complaint is granted to the limited extent the Court 15 acknowledges receipt of the amended complaint filed on July 8, 2022. 16 Motion to Disqualify Judges and for Ruling on Amended Complaint (Doc. No. 157). 17 In summary, Plaintiff reiterates he mailed an amended complaint and the Clerk returned it. 18 (Doc. No. 157 at 1-2). Plaintiff faults the Court for not acknowledging that the Court received his 19 amended complaint. (Id. at 2). Plaintiff avers “State CDCR sworn officers stole it. And did or 20 did not send it to the Courts.” (Id.)(errors in original). Plaintiff further states correctional staff is 21 depriving him of his federally protected rights by not sending his legal mail to the Court and 22 accuse officials of being discriminatory toward him. (Id.). Plaintiff also alleges the Court is bias, 23 and requests the undersigned as well as the district judge’s disqualification in this matter. (Id. at 24 4). 25 Both supra and in its June 8, 2022 Text Only Order, the Court addressed the receipt 26 and/or return of Plaintiff 404-page amended complaint. Turning to the allegations seeking 27 disqualification of the undersigned, the docket confirms the case is assigned to both a district 28 judge and a magistrate judge. To the extent Plaintiff requests a district judge rule on the case, any 1 dispositive motion will be reviewed by findings and recommendations by the district judge, so his 2 request is moot. To the extent Plaintiff seeks recusal of the undersigned, the motion is governed 3 by 28 U.S.C. §§ 144 and 455. Plaintiff has not attached an affidavit required under 28 U.S.C. § 4 144. Consequently, the Court construes the motion as brought under § 455. 5 Title 28 U.S.C. § 455 provides that a “magistrate judge shall disqualify [herself] in any 6 proceeding in which her impartiality might reasonably be questioned” or “[w]here he has a 7 personal bias or prejudice concerning a party.” 28 U.S.C. §§ 455(a). “The standard for judging 8 the appearance of partiality requiring recusal under 28 U.S.C. § 455(a) is an objective one and 9 involves ascertaining ‘whether a reasonable person with knowledge of all the facts would 10 conclude that the judge’s impartiality might reasonably be questioned.’” United States v. 11 Holland, 519 F.3d 909, 913 (9th Cir. 2008); Preston v. United States, 923 F.2d 731, 734 (9th Cir. 12 1991) (citations omitted). The “reasonable person” is not someone who is “hypersensitive or 13 unduly suspicious,” but rather is a “well-informed, thoughtful observer.” Holland, at 913. “The 14 standard “‘must not be so broadly construed that it becomes, in effect, presumptive, so that 15 recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.’” 16 Holland, 519 F.3d at 913. 17 The court’s analysis is “fact-driven” requiring “an independent examination of the unique 18 facts and circumstances of the particular claim at issue.” Id. at 914 (citation omitted). Thus, 19 “except in the “rarest of circumstances,” recusal under § 455(a) is limited to “extra judicial 20 source” factors requiring the reason for recusal to be “something other than rulings, opinions 21 formed or statements made by the judge during the course of trial. Id. (citing Liteky v. United 22 States, 510 U.S. 540, 554–56, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994)). 23 The sole basis for Plaintiff’s request seeking recusal of the undersigned stems from orders 24 the undersigned has issued in this case, primarily concerning the status of his 404-page amended 25 complaint. The motion otherwise provides no factual support for his allegations that the 26 undersigned is biased. Moreover, the issue concerning the filing of an amended complaint is not 27 yet ripe as the Court has directed Defendants to respond to the construed motion for leave to file 28 an amended complaint. Thus, Plaintiff’s motion for recusal of the undersigned and for ruling on 1 | amended compliant is denied. Finally, to the extent Plaintiff wishes to appeal any orders, there is 2 | no final order to appeal. 3 Accordingly, it is ORDERED: 4 1. Plaintiff's motion to take judicial notice (Doc. No. 150) is DENIED. 5 2. Plaintiffs motion for ruling on amended complaint is construed as a motion for leave 6 | to file an amended complaint (Doc. No. 153). Defendants shall file a response to the motion 7 | within twenty-one (21) days. 8 3. Plaintiff's “motion for acknowledgment of 404 page amended complaint (Doc. No. 9 | 154) is GRANTED to the limited extent the Court acknowledges receipt of Plaintiff’s 404-page 10 || amended complaint filed and docketed on July 8, 2022. 11 4. Plaintiffs motion for recusal of the undersigned and for ruling on amended complaint 12 | (Doc. No. 157) is DENIED. 13 "| Dated: _ August 22, 2022 Mile. Wh fareh Zaskth 15 HELENA M. BARCH-KUCHTA 6 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28