(PC) Merino v. Gomez ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO MERINO, No. 2: 21-cv-0572 DAD KJN P 12 Plaintiff, 13 v. ORDER 14 GOMEZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Several matters are pending before the court. 19 Plaintiff’s Motion for Recusal (ECF No. 168) 20 Plaintiff moves for recusal of the undersigned. A judge must disqualify himself if “his 21 impartiality might be reasonably questioned,” 28 U.S.C. § 455(a), or if “he has a personal bias or 22 prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning a 23 party, or personal knowledge of disputed evidentiary facts concerning the proceeding,” 28 U.S.C. 24 § 455(b)(1). “[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality 25 motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). Judicial bias or prejudice formed 26 during current or prior proceedings is sufficient for recusal only when the judge’s actions “display 27 a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. The 28 objective test for determining whether recusal is required is whether a reasonable person with 1 knowledge of all the facts would conclude that the judge’s impartiality might reasonably be 2 questioned. United States v. Johnson, 610 F.3d 1138, 1147 (quotation marks and citation 3 omitted). “Adverse findings do not equate to bias.” Id. at 1148. 4 In the pending motion, plaintiff contends that the undersigned has never granted any 5 motions filed by plaintiff. Plaintiff contends that the undersigned always “contradicts” plaintiff’s 6 motions and grants defendants’ motions. Plaintiff contends that the undersigned is 7 “contradicting” plaintiff’s opposition to defendants’ summary judgment motion. 8 Plaintiff’s claim that the undersigned has not granted plaintiff’s previously filed motions 9 is not grounds for recusal. Johnson, 610 F.3d at 1148 (“Adverse findings do not equate to bias.”). 10 In addition, the undersigned has not ruled on defendants’ summary judgment motion or issued 11 any orders regarding the merits of plaintiff’s opposition. Therefore, plaintiff’s claim that the 12 undersigned “contradicted” plaintiff’s opposition is unfounded. 13 For the reasons stated above, plaintiff’s motion for recusal of the undersigned is denied. 14 Plaintiff’s Motions for Extensions of Time to File an Opposition to Defendants’ Summary 15 Judgment Motion (ECF Nos. 158, 159) 16 On June 2, 2023, and June 5, 2023, plaintiff filed the pending requests for extensions of 17 time to file an opposition to defendants’ summary judgment motion. (ECF Nos. 158, 159.) 18 On May 2, 2023, the undersigned granted plaintiff a thirty days extension of time to file 19 his opposition. (ECF No. 151.) Pursuant to the mailbox rule, plaintiff filed a timely opposition to 20 defendants’ summary judgment motion on May 30, 2022. (ECF No. 160 at 143.) Accordingly, 21 plaintiff’s motions for extensions of time to file his opposition to defendants’ summary judgment 22 motion are denied as unnecessary. 23 Plaintiff’s Motion to Postpone Consideration of Defendants’ Summary Judgment Motion (ECF 24 No. 157) 25 On May 19, 2023, plaintiff filed a motion to postpone consideration of defendants’ 26 summary judgment motion. (ECF No. 157.) Plaintiff alleges that he cannot oppose defendants’ 27 summary judgment motion because he is living alone in a cell and cannot conduct discovery. 28 (Id.) 1 As stated above, on May 30, 2022, plaintiff filed an opposition to defendants’ summary 2 judgment motion. (ECF No. 160.) Based on the filing of this opposition, it appears that plaintiff 3 abandoned his request to postpone consideration of defendants’ summary judgment motion. 4 Accordingly, plaintiff’s motion to postpone is vacated. 5 Plaintiff’s Motions for Appointment of Counsel (ECF Nos. 157, 161, 167, 169) 6 Plaintiff requests appointment of counsel. District courts lack authority to require counsel 7 to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 8 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to 9 voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 10 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). 11 When determining whether “exceptional circumstances” exist, the court must consider plaintiff’s 12 likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro 13 se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 14 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The 15 burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 16 common to most prisoners, such as lack of legal education and limited law library access, do not 17 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 18 Having considered the factors under Palmer, the court finds that plaintiff failed to meet his 19 burden of demonstrating exceptional circumstances warranting the appointment of counsel at this 20 time. If appropriate, the undersigned will consider appointment of counsel for plaintiff following 21 resolution of defendants’ summary judgment motion. 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s motion for recusal of the undersigned (ECF No. 168) is denied; 24 2. Plaintiff’s motions for extensions of time to file an opposition to defendants’ summary 25 judgment motion (ECF Nos. 158, 159) are denied as unnecessary; 26 3. Plaintiff’s motion to postpone consideration of defendants’ summary judgment 27 motion, docketed as a motion for extension of time, (ECF No. 157) is vacated; and 28 //// ] 4. Plaintiff's motions for appointment of counsel (ECF Nos. 157, 161, 167, 169) are 2 denied without prejudice. 3 || Dated: July 27, 2023 ' Foci) Aharon 5 KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 Mer572.ord(9) 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28