Raiser v. San Diego County ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AARON RAISER, Case No.: 19-cv-00751-GPC 12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 SAN DIEGO COUNTY, MOTION FOR 15 Defendant. RECONSIDERATION OF ECF NO. 199; AND 16 17 (2) DENYING PLAINTIFF’S MOTION FOR 18 RECONSIDERATION OF ECF NO. 19 200; AND 20 (3) DENYING PLAINTIFF’S EX 21 PARTE APPLICATION FOR ORDER 22 23 [ECF Nos. 206, 207, 221] 24 On July 9, 2021, this Court issued an Order overruling Plaintiff Aaron Raiser 25 (“Plaintiff”)’s opposition to the Magistrate Judge’s Order (ECF 112, “MJ Order”) and 26 adopting the Magistrate Judge’s Report and Recommendation regarding a deposition 27 1 dispute. ECF No. 199. On the same day, this Court also issued an Order granting 2 summary judgment in favor of Defendants. ECF No. 200 (“SJ Order” or “Summary 3 Judgment Order”). On August 6, 2021, Plaintiff, proceeding pro se, filed two motions 4 pursuant to Federal Rule of Civil Procedure (“Rule”) 59: a Motion for Reconsideration of 5 ECF No. 199, and a Motion for Reconsideration of ECF No. 200. ECF Nos. 206, 207. 6 Each of these Motions also included a request that Judge Curiel “certify” that he had read 7 the Motion and supporting papers. On September 15, 2021, Plaintiff filed an ex parte 8 Motion for Application for an Order that all non-judicial staff be recused from working 9 on the case, that Judge Curiel recuse himself, that Plaintiff be allowed to exceed the page 10 limit, that Plaintiff be allowed to amend his Motion after receiving a copy of ECF No. 11 218, and that Judge Curiel again “certify” that he personally read and decided the 12 pending ex parte matters. ECF No. 220. On September 22, 2021, Plaintiff filed an 13 Amended Ex Parte Application for Order addressing the same grounds, which this Court 14 reads as replacing ECF No. 220. ECF No. 221. On October 1, 2021, a hearing was held 15 on the pending motions and the Court thereafter took the matters under submission. 16 Having reviewed the filed papers relating to these pending motions and having 17 considered the oral arguments made by the parties at the October 1, 2021 hearing, the 18 Court DENIES Plaintiff’s Motions for Reconsideration, Nos. 206, 207, 221. 19 I. Plaintiff’s Motions for Reconsideration 20 While Rule 59(e) permits a district court to reconsider and amend a previous order, 21 this is an “extraordinary remedy, to be used sparingly in the interests of finality and 22 conservation of judicial resources.” Carroll v. Nakatani, 342 F.3d 934, 945 (9th Cir. 23 2003). Motions for reconsideration are disfavored and should only be granted in narrow 24 instances. “[A] motion for reconsideration should not be granted, absent highly unusual 25 circumstances, unless the district court is presented with newly discovered evidence, 26 committed clear error, or if there is an intervening change in the controlling law.” Id. 27 1 (quoting Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). 2 A Rule 59(e) motion cannot be used to raise arguments or present evidence for the first 3 time when such arguments or evidence could have reasonably been raised earlier in the 4 litigation. Kona, 229 F.3d at 890. “A motion to reconsider is not another opportunity for 5 the losing party to make its strongest case, reassert arguments, or revamp previously 6 unmeritorious arguments.” Ausmus v. Lexington Ins. Co., No. 08-cv-2342, 2009 WL 7 2058549, at *2 (S.D. Cal. July 15, 2009). Whether to grant or deny a motion for 8 reconsideration rests with the sound discretion of the district court. Navajo Nation v. 9 Norris, 331 F.3d 1041, 1046 (9th Cir. 2003).1 10 A. Plaintiff’s Motion for Reconsideration of ECF No. 199 11 The central question answered by ECF No. 199 and the related Magistrate Judge 12 Order at ECF No. 112 was whether Defendants were justified in declining to appear at 13 potentially procedurally unsound depositions noticed by Plaintiff, and whether their 14 declinations warranted sanctions or default judgment. This question was prompted by 15 Plaintiff’s desire to take depositions via Zoom without the presence of a court reporter, 16 but simply with “any person” (ECF No. 68-1 at 12) or with a notary (ECF No. 81 at 3). 17 This meant that the depositions would take place “without the procedural protections set 18 forth in Federal Rule of Civil Procedure 30, which require the presence of a qualified 19 deposition officer to create and maintain an impartial record.” ECF No. 112 (“MJ Order”) 20 21 1 Local Rule 7.1(i) requires an affidavit by a party or witness to accompany any motion for 22 reconsideration. Plaintiff has only attached declarations to his Motions for Reconsideration, and those declarations merely summarize the arguments that Plaintiff makes in his Motion. This is not the first 23 time that Plaintiff has failed to follow the procedural rules of this Court, and this alone could justify 24 denial of Plaintiff’s Motion. Isis Pharmaceuticals, Inc. v. Santaris Pharma A/S Corp., 2014 WL 2212114, at *2 (S.D. Cal. May 28, 2014) (finding that party’s failure to submit affidavits where 25 required, and submittal of a declaration merely summarizing motion’s arguments, would be a sufficient basis to deny motion for reconsideration). However, in the interest of a full record, and to make clear to 26 Plaintiff why his motions are being denied, this Court will proceed on the basis of Plaintiff’s filings despite their improper form and substance. 27 1 at 3. Defendants had agreed to take remote depositions via Zoom, but did not waive Rule 2 30’s protections. Id. Plaintiff’s position is that his hiring of a notary was sufficient to 3 meet the procedural standards set out in Rule 30, because the notary could certify the 4 accuracy of the Zoom recording and each party could either transcribe the deposition 5 themselves, or “Plaintiff could pay the notary to transcribe it or simply transcribe it 6 himself and allow the notary to certify it.” ECF No. 206 at 11. 7 This Court already addressed Plaintiff’s arguments in great detail in its previous 8 Order adopting the Magistrate Judge’s Report and Recommendation. ECF No. 199 at 14. 9 The Court has previously noted that it is not sufficient for any public notary to simply 10 certify the audio or video recording, unless the parties so stipulate, if that notary is not 11 appropriately trained or experienced in the certification of such recordings. 2 Id. Further, 12 it would be highly improper for Plaintiff himself to transcribe the deposition or serve as 13 the deposition officer. Id. at 15; see Fed. R. Civ. P. 28(c) (disqualifying any person who 14 is financially interested in the action, which would include parties to the litigation). 15 Under both of Plaintiff’s proffered scenarios, the deposition transcripts and the 16 underlying audio and video recordings would likely be inadmissible as evidence because 17 of their procedural inadequacies if the notary did not have sufficient training or 18 experience to properly authenticate them—and the record does not show that the notary 19 had such ability. Id. at 13; see Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 20 2002) (holding that unauthenticated documents cannot be considered in a motion for 21 summary judgment); Pavone v. Citicorp Credit Services, Inc., 60 F. Supp. 2d 1040, 1045 22 (S.D. Cal. 1997) (declining to consider a deposition as evidence where the deposition 23 24 25 2 Plaintiff’s citations to Slaughter v. Boeing Co., No. 11-cv-537-DN-BCW, 2012 WL 5473134, at *2 (D. 26 Utah Nov. 9, 2012) (where notary served as deposition officer) are not controlling or afforded weight given that Slaughter was decided by a district court judge in Utah, which is not part of the Ninth Circuit. 27 1 transcript was not properly authenticated, despite the fact that a court reporter was present 2 at the deposition). 3 Regardless, on a Rule 59 motion, the Court is not relitigating the finer points of 4 whether Plaintiff’s proposed deposition procedures were sound, but rather, whether 5 Plaintiff has met the standard for reconsideration by presenting newly discovered 6 evidence, by convincing the Court that it has committed clear error, or by presenting an 7 intervening change in the controlling law. 8 1. New Evidence 9 Nothing in Plaintiff’s Motion for Reconsideration (ECF No. 206) can be 10 characterized as new evidence. Plaintiff’s Declaration and Memorandum of Points and 11 Authorities seek to relitigate this Court’s findings by disagreeing with their outcome, 12 rather than pointing to newly discovered support for Plaintiff’s contentions. The only 13 possible “new evidence” contained in Plaintiff’s Declaration is an unsupported assertion 14 of “substantial bias” against Plaintiff, based on Plaintiff’s reading of file metadata 15 showing Chunghang Lee as the apparent author of ECF No. 199. ECF No. 206 at 3. 16 Plaintiff alleges a “material and substantial coordinated effort by pro se and staff 17 attorneys to doom Plaintiff’s cases and defeat them no matter what.” Id. These specious 18 and conspiratorial allegations are not evidence. See Yagman v. Republic Ins., 987 F.2d 19 622, 626 (9th Cir. 1993) (mere speculative assertions of invidious motive are insufficient 20 to show judicial bias). Therefore, no newly discovered evidence supports reconsideration 21 of ECF No. 199. 22 2. Clear Error 23 In order to present a viable Rule 59(e) claim under this prong, Plaintiff must 24 establish that this Court committed clear error in overruling Plaintiff’s objections to the 25 Magistrate Judge’s Order and adopting the Magistrate Judge’s Report and 26 Recommendation. Plaintiff’s Motion takes issue with many details of this Court’s 27 1 previous Orders, including the Court’s representation of how Plaintiff phrased certain 2 arguments and whether Magistrate Judge Crawford’s chambers rules should provide for a 3 reply brief. However, a finding of clear error requires more than mere disagreement with 4 a Court’s decision. That is, the issue before the Court on this Motion for Reconsideration 5 is not strictly whether Plaintiff’s proposed depositions were procedurally sound. Rather, 6 the question posed is whether it was clear error for the Court to adopt and ratify the 7 Magistrate Judge’s Order finding it reasonable for Defendants not to attend the noticed 8 depositions in light of procedural qualms and the Magistrate Judge’s previous orders. 9 Plaintiff must carry his burden in convincing this Court that it was clear error not to order 10 sanctions against Defendants. See Salem v. Federal Deposit Insurance Corporation for 11 La Jolla Bank, FSB, No. 15-cv-1114-AJB-BGS, 2017 WL 1375616, at *2 (S.D. Cal. Apr. 12 17, 2017) (discussing moving party’s burden). The Court finds that Plaintiff has not done 13 so. 14 While Plaintiff’s Motion for Reconsideration of ECF No. 199 focuses on the 15 specifics of whether Plaintiff’s depositions were procedurally adequate, this Court ruled 16 in ECF No. 199 that “[e]ven if the depositions were proper, Defendants were justified in 17 not attending . . . [and therefore] Plaintiff is not entitled to monetary sanctions, let alone 18 default judgment.” ECF No. 199 at 21 (emphasis added). Thus, even if Plaintiff could 19 prove that the depositions were procedurally proper—which he has not done—such proof 20 would be beside the point, as Plaintiff has not shown the Court why it was clear error for 21 the Court to find it reasonable at the time for Defendants not to attend procedurally 22 doubtful depositions in light of the Magistrate Judge’s ruling. At most, Plaintiff’s motion 23 reiterates the unsupported argument that “nothing prohibits the Defendants from simply 24 comparing any transcript against the Zoom video which the Defendants are permitted to 25 keep, or simply get a copy of the video from the notary and compare,” (ECF No. 206 at 26 19) or that “Zoom allows all participants to record the proceedings, and thus, Plaintiff 27 1 being the deposition officer would not be an issue as nothing would be in dispute . . .” Id. 2 at 21.3 Plaintiff seems to feel that these courses of action are fair enough that this Court 3 should simply agree. These proposals illustrate Plaintiff’s fundamental misunderstanding 4 of the Federal Rules of Civil Procedure, which require strict and clear adherence even if 5 one party personally feels that their suggested approach to a deposition would be fair 6 enough. 7 Plaintiff also argues that, because he withdrew his motions pending before 8 Magistrate Judge Crawford, the noticed depositions should have been allowed to proceed. 9 ECF No. 206 at 21. Magistrate Judge Crawford’s Order states that “[o]n September 17, 10 2020 and September 24, 2020, before the Court ruled on the deposition issues that were 11 still pending, plaintiff filed Notices withdrawing the portions of his pending Ex Parte 12 Motions . . . In this Court’s view, plaintiff was not entitled to unilaterally withdraw the 13 dispute over his proposed exceptions to the Rule 30 deposition requirements from the 14 Court’s consideration, and defendants were entitled to disregard the withdrawals and to 15 continue to await the Court’s ruling before appearing for any depositions.” ECF No. 112 16 17 3 Plaintiff also takes issue with the Court’s citations to Alcorn v. City of Chicago, 336 F.R.D. 440, 442 18 (N.D. Ill. 2020) and Nusbaum v. MBFG Ltd. P’ship, No. 07-1032, 2009 WL 2605320, at *1 (W.D. Pa. Aug. 21, 2009), which the Court will pause here to address. According to Plaintiff, the Court erred in 19 citing to these cases because Plaintiff reads the citations as establishing that the Federal Rules explicitly 20 require that a deposition officer must be a videographer or court reporter. ECF No. 206 at 27. This is not a correct reading of the Court’s order, which nowhere states that the deposition officer must be a 21 videographer or court reporter. These cases were cited by the Court to demonstrate the seriousness with which courts examine the qualifications of a deposition officer—which also justifies Defendants’ 22 unwillingness to attend depositions without clarity or assurances as to the deposition officer’s identity or qualifications. Cf. ECF No. 206 at 4 (“If I have the money likely I’ll pay someone to do it, if not there is 23 nothing that prohibits me from doing the transcript and then you . . . [can] review[] it alongside the video 24 . . .”) After citing Alcorn and Nusbaum, the Court explicitly stated: “The discussion above collectively indicates that, while the parties may conduct a Zoom deposition, there must still be a third-party 25 deposition officer present. And while a public notary may be a deposition officer, that public notary must be in a position to certify that the recording of the deposition (or copies thereof) is not distorted. 26 Further, the deposition transcript must be certified by someone other than the litigating parties to ensure its accuracy.” ECF No. 199 at 14. 27 1 at 9. The Court agrees with Magistrate Judge Crawford. Once Plaintiff asked the 2 Magistrate Judge to intervene in the deposition dispute via his ex parte motions, the 3 matter was before the Court, and it was the Court’s prerogative to decide how best to 4 clarify the issue for the parties, even if one of the parties disagreed. See In re BofI 5 Holding, Inc. Securities Litigation, 2021 WL 1812822, at *4 (S.D. Cal. May 6, 2021) 6 (noting that district courts and magistrate judges handling pretrial matters have broad 7 discretion to control discovery and manage the course of litigation); United States v. 8 Hansen, 233 F.R.D. 665, 669 (S.D. Cal. 2005) (discussing magistrate judges’ authority to 9 manage pretrial discovery matters and enter orders resolving discovery disputes). 10 Magistrate Judge Crawford’s October 5, 2020 Order provided needed clarification in 11 light of Plaintiff’s various representations to the Court that he might proceed with “any 12 person” (ECF No. 68-1 at 12), or with himself as the deposition officer (ECF No. 78 at 2) 13 (arguing that “having a third-party present to administer the oath should not be an 14 absolute requirement”). Given Magistrate Judge Crawford’s justified concern that 15 Plaintiff might not understand the requirements of FRCP 30, and the legitimate, recurring 16 procedural concerns raised by Defendants regarding the depositions, it was prudent for 17 Magistrate Judge Crawford to issue a ruling and provide guidance to the parties. The 18 October 5, 2020 Order also extended the discovery deadline with respect to the 19 depositions, allowing Plaintiff to proceed in a procedurally appropriate manner following 20 the Court’s guidance. ECF No. 87 at 7. Thus, Plaintiff’s opportunity to proceed with 21 depositions was not foreclosed. If Plaintiff did not want to invoke the Court’s authority 22 and intervention, his recourse was with the meet-and-confer process that his ex parte 23 motions circumvented. 24 In sum, the Court finds that Plaintiff has not shown clear error on the part of this 25 Court in ECF No. 199 such that reconsideration should be granted. 26 27 1 3. Intervening Change in Controlling Law 2 Plaintiff’s caselaw citations are all to cases that were decided before the Court’s 3 instant order. Therefore, Plaintiff has not pointed to an intervening change in controlling 4 law that would justify reconsideration of this Court’s decision. 5 B. Plaintiff’s Motion for Reconsideration of ECF No. 200 6 In ECF No. 207, Plaintiff asks this Court to reconsider its July 8, 2021 Order 7 granting summary judgment in favor of Defendants (ECF No. 200). In that Order, the 8 Court found that, as to three separate incidents Plaintiff experienced with Sheriff 9 Deputies Fealy, Murphy, and Rossall, respectively, there were no genuine issues of 10 material fact that would preclude a grant of summary judgment for the Defendants. The 11 Court analyzed each incident in turn to determine whether the officer in question had a 12 reasonable basis to conduct a brief, non-intrusive investigatory stop, and whether any of 13 these stops rose to the level of an unconstitutional detention in violation of the Fourth 14 Amendment. 15 In the first incident, Detective Fealy and another officer not named in the suit 16 stopped and questioned Plaintiff for about 10 to 14 minutes while Plaintiff’s car was 17 parked on the side of a road near Fallbrook, California. ECF No. 200 at 4, 7. As a basis 18 for his decision to briefly stop and question Plaintiff, Detective Fealy explained that it is 19 unusual to see individuals parked in their cars in that area, and that the area is known as a 20 place where individuals dump stolen vehicles, stop to use drugs and alcohol in their 21 vehicles, and potentially commit theft from the surrounding agricultural properties, 22 among other offenses.4 Id. at 5. The area was unpopulated, “rural” (ECF No. 165-1 at 2), 23 24 4 During the October 1, 2021 hearing on Plaintiff’s Motions for Reconsideration, the Court stated that 25 during this first stop involving Detective Fealy, Plaintiff’s car had mosquito screens in place of the back windows. Plaintiff objected to this and argued that the screens were not there. Hr’g Tr. 33. In reviewing 26 the record, the Court refers Plaintiff to his deposition, ECF No. 132-2 at 27, which suggests but does not 27 definitively state that the screens were in place during the interaction with Detective Fealy. However, 1 “with no houses around per se” (Plaintiff’s description at ECF No. 165-1 at 2), and 2 “desolate” (Id.). The Court found that, based on Detective Fealy’s detailed explanation of 3 his rationale for the detention, Detective Fealy had formed a reasonable suspicion 4 sufficient to detain Plaintiff for the brief period at issue, and that the investigatory stop 5 did not extend longer than necessary in terms of length, scope, and focus. ECF No. 200 at 6 22. Similarly, in the second incident, the Court found that despite the fact that the initial 7 dispatch call on its own did not provide reasonable suspicion, id. at 28, Detective Murphy 8 had a duty to follow up on the call and investigate it, and that based on Detective 9 Murphy’s experience and Plaintiff’s car’s appearance, it was reasonable for Detective 10 Murphy to stop Plaintiff for between 8 and 11 minutes. Id. at 10. As to the third incident, 11 the Court found that the investigatory stop by Detective Rossall, which lasted two 12 minutes, was reasonable. Id. at 29. The parties agree that none of the stops involved 13 threats of detention, violence, or arrest. Id. at 7, 10, 29. Since the Court found no 14 violations of Plaintiff’s Constitutional rights, there was no basis to support a § 1983 15 claim. In addition, the Court found that Plaintiff’s false imprisonment claims were 16 waived, id. at 31, and that there was no “threat, intimidation, or coercion” to support a 17 viable Bane Act claim. Id. 18 The legal standard here, as above, is whether Plaintiff has presented newly 19 discovered evidence, clear error on the part of the Court, or an intervening change in 20 controlling law that convinces the Court it should amend or alter its judgment. 21 1. New Evidence 22 Plaintiff repeats nearly verbatim his allegations of “substantial bias” against him by 23 courthouse staff, as well as his belief that his matters are being decided without Judge 24 25 26 the Court acknowledges that ECF No. 165-7, a photograph showing Plaintiff’s car during the first stop, does not show mosquito screens on the back windows. 27 1 Curiel’s input or approval. ECF No. 207 at 3. This is the only possible “new evidence” 2 that his Motion for Reconsideration adduces. As the Court noted above, such unfounded 3 allegations are in no way “new evidence” that would support or require a reconsideration 4 of this Court’s previous Order. 5 Further, at the start of the October 1, 2021 hearing, the Court identified the 6 documents that it had reviewed in preparing for the motions and provided a tentative 7 indication as to the Court’s view of the pending motions. Hr’g Tr. at 3-4. Mr. Raiser had 8 an opportunity to address the tentative ruling and the Court has considered Mr. Raiser’s 9 arguments in deciding the motions at bar. Mr. Raiser has failed to present new evidence 10 that supports his motions. 11 2. Clear Error 12 Motions for reconsideration under Rule 60(b) or Rule 59(e) “are not the proper 13 vehicles for rehashing old arguments and are not intended to give an unhappy litigant one 14 additional chance to sway the judge.” Kilbourne v. Coca-Cola Co., No. 14-cv-984-MMA, 15 2015 WL 10943610, at *2 (S.D. Cal. Sept. 11, 2015). The fact that a litigant merely 16 disagrees with the Court’s decision does not render relief appropriate. Salem, 2017 WL 17 1375616 at *3. Plaintiff’s Motion cavils at many of the details underlying this Court’s 18 previous Order, including specific word choices (i.e. what “desolate” means, ECF No. 19 207 at 4), whether Plaintiff’s car actually had broken windows or had the appearance of 20 broken windows (id. at 16), and numerous other objections. It is unnecessary for this 21 Court to address each of Plaintiff’s objections point by point, however, because these are 22 exactly the type of arguments disfavored and disallowed in a motion for reconsideration. 23 Not only does Plaintiff’s Motion focus solely on legal arguments and factual 24 disputes that could have been raised at the time of the challenged decision, but most, if 25 not all, of these arguments were in fact so raised—and this Court has already decided on 26 them. Even if properly raised in the instant Motion, Plaintiff’s arguments would not 27 1 change the outcome of this Court’s decision. For example, in support of his overarching 2 argument that summary judgment was wrongly granted for Defendants, Plaintiff argues 3 that his conduct was legal: “There is no conceivable way a person starting their car can be 4 considered furtive, or nervous behavior. As Plaintiff pointed out at briefing, people are 5 free to go about their business when an officer approaches.” ECF No. 207 at 9. However, 6 this argument, like the other arguments in Plaintiff’s Motion, fails to take into account 7 what this Court has already explained, which the Court will now repeat: 8 Mr. Raiser consistently conflates the legality of his conduct with the officer’s prerogative to be reasonably suspicious given the totality of the 9 circumstances. It does not matter that Mr. Raiser was not charged of any 10 crime, or that he had the right to ‘flee’ or otherwise not engage with the 11 officer. It also matters little whether Mr. Raiser was entitled to park his cars 12 in the area at-issue. Instead, the operative concern is whether those forms of conduct (which Mr. Raiser had every right to engage in), combined with the 13 surrounding circumstances and the officer’s experience, provided a 14 reasonable suspicion to detain Mr. Raiser. ECF No. 200 at 21 (emphasis in 15 original). 16 Whether there was reasonable suspicion to support the brief interactions at issue, 17 and whether Plaintiff was doing anything wrong, are thus separate matters. This Court 18 has already found that reasonable suspicion existed in all three interactions. 19 Plaintiff does not provide the Court with any caselaw in which investigatory stops 20 of 10-14 minutes, 8-11 minutes, or two minutes were found to be unreasonable and 21 therefore in violation of the Fourth Amendment. Nor has Plaintiff provided evidence 22 showing that the detectives undertook any purpose outside of the usual permissible 23 inquiries such as checking the driver’s license and determining whether there are 24 outstanding warrants against the driver. United States v. Evans, 786 F.3d 779, 786 (9th 25 Cir. 2015). While a stop may last no longer than is reasonably necessary to effectuate its 26 purpose, “the court should not indulge in unrealistic second-guessing” of whether a stop 27 1 might theoretically have been accomplished more quickly. U.S. v. Sharpe, 470 U.S. 675, 2 686 (1985). The legal standard for whether a stop was unreasonable does not require 3 officers to shave off seconds or minutes from the interaction wherever possible, but 4 rather, looks to whether the purpose for the stop was diligently pursued. Id. at 685 5 (“[O]ur cases impose no rigid time limitation on Terry stops”). And though each case 6 does, of course, turn on its own facts, the Court is guided by the parameters set out by 7 previous cases in determining how long a reasonable stop might be. The Court was 8 unable to find caselaw suggesting that a stop of the length at issue here was unreasonable. 9 See United States v. Barragan, 19 F.3d 29, 29 (9th Cir. 1994) (twenty-minute stop to 10 investigate driver’s license and car registration was reasonable); Cooley v. Leung, 637 11 Fed. Appx. 1005, 1007 (9th Cir. 2016) (15-minute traffic stop was not unreasonably 12 prolonged); Carr v. City of Redondo Beach, 275 Fed. Appx. 592, 594 (9th Cir. 2008) (20- 13 25 minute stop was Constitutional); cf. Evans, 786 F.3d at 786 (9th Cir. 2015) (extending 14 stop by eight minutes to perform unrelated tasks without reasonable suspicion justifying 15 prolongation violated Fourth Amendment). 16 Here, Plaintiff failed to create a genuine issue of fact that any of the three stops 17 were extended any longer than reasonable under the circumstances. Viewing the 18 evidence in a light most favorable to Plaintiff, even after the Court credits Plaintiff’s 19 assertion that he observed Detective Fealy on a cellphone for about a minute, the Court 20 does not find that this could create a genuine issue of material fact as to whether 21 Plaintiff’s traffic stop was unreasonably extended. The fact that Detective Fealy may 22 have been on a cellphone for a minute does not demonstrate that he undertook any 23 purpose outside of the usual permissible inquiries. 24 Plaintiff also argues that Defendants were required to provide the Court data 25 showing that the location of Detective Fealy’s interaction with Plaintiff was indeed a 26 “high-crime area.” In support of this argument, Plaintiff cites to United States v. 27 1 Montero-Camargo, 208 F.3d 1122, 1139 n.32 (9th Cir. 1999) and Illinois v. Wardlow, 2 528 U.S. 119, 124 (2000). However, neither of these cases provide support for Plaintiff’s 3 contention. Right after Plaintiff’s citation, Wardlow explicitly states that officers may 4 take into account the characteristics of a location to determine whether circumstances are 5 suspicious and that “the determination of reasonable suspicion must be based on common 6 sense judgments and inferences about human behavior.” Wardlow, 528 U.S. 119, 124 7 (2000) (“But officers are not required to ignore the relevant characteristics of a location 8 in determining whether the circumstances are sufficiently suspicious to warrant further 9 investigation. Accordingly, we have previously noted the fact that the stop occurred in a 10 ‘high crime area’ among the relevant contextual considerations in a Terry analysis.”) 11 Wardlow did not hold that data was always required to support an evaluation of whether 12 an area might be “high crime.” 13 As to Montero-Camargo, Plaintiff provides an incomplete cite to a footnote by 14 leaving out the beginning of the sentence, which reads: “With respect to populated areas, 15 or areas in which people typically carry on legitimate activities (including areas where 16 people frequently camp or hike), we share our concurring colleagues’ concern, and agree 17 that more than mere war stories are required to establish the existence of a high-crime 18 area. As we have stated in the text, courts should examine with care the specific data 19 underlying any such assertion.” Montero-Camargo, 208 F.3d at fn. 32 (emphasis added). 20 The majority’s footnote therefore discusses the need for data in the specific context of a 21 populated area, which is not at issue in Plaintiff’s case. The location of Plaintiff’s 22 interaction with Detective Fealy is much more akin to the circumstances discussed in the 23 text the majority refers back to: “In this case, the ‘high crime’ area is in an isolated and 24 unpopulated spot in the middle of the desert. Thus, the likelihood of an innocent 25 explanation for the defendants’ presence and actions is far less than if the stop took place 26 27 1 in a residential or business area.” Id. at 1139. Like the location in Montero-Camargo, 2 Plaintiff’s location was isolated and unpopulated.5 3 Plaintiff also argues that the Court erred in its legal analysis as to Plaintiff’s Bane 4 Act claims. ECF No. 207 at 36. This Court found that Plaintiff had not established an 5 essential element of his Bane Act claim because Plaintiff had not alleged coercion or any 6 kind of threat other than the fact that Detective Rossall was in full police uniform and 7 carrying a gun. ECF No. 200 at 32. “Under Mr. Raiser’s interpretation of ‘violence,’ 8 every interaction that someone has with an armed police officer would constitute a Bane 9 Act claim. That is not the law.” Id. (citing, inter alia, Quezada v. City of Los Angeles, 222 10 Cal. App. 4th 993, 1008 (2014)). Plaintiff argues in his Motion for Reconsideration that 11 “nothing in the text of the [Bane Act] statute requires that the offending ‘threat, 12 intimidation or coercion’ be ‘independent’ from the constitutional violation alleged.” 13 Cornell v. City & Cnty. of S.F., 17 Cal. App. 5th 766, 800 (Cal. Ct. App. 2017). Under 14 this argument, presumably, there would be sufficient coercion in the investigatory stop 15 itself to satisfy the elements of a Bane Act claim. However, this is an incomplete and 16 therefore incorrect reading of Cornell. Cornell did not repudiate the basis for the 17 Quezada decision, established by Shoyoye v. Cnty. of Los Angeles, 203 Cal. App. 4th 18 947, 959-960 (Cal. Ct. App. 2012): that the Bane Act requires coercion independent from 19 the coercion inherent in the wrongful detention itself. Id. at 797. Instead, Cornell 20 analyzes whether Shoyoye’s reasoning applies in the specific situations where a 21 constitutionally unlawful arrest has been proven. Cornell, 17 Cal. App. 5th at 797. 22 Cornell specifically held that “where, as here, an unlawful arrest is properly pleaded and 23 proved, the egregiousness required by Section 52.1 is tested by whether the 24 25 5 Plaintiff’s argument at the October 1, 2021 hearing that the area is not unpopulated because there is a 26 highway nearby is unconvincing. Common sense dictates that highways, even and especially well- traveled highways, frequently run through remote and unpopulated areas. Hr’g Tr. at 26. 27 1 circumstances indicate the arresting officer had a specific intent to violate the arrestee’s 2 right to freedom from unreasonable seizure, not by whether the evidence shows 3 something beyond the coercion ‘inherent’ in the wrongful detention.” Id. at 801-802. 4 Since there was no arrest at all in Plaintiff’s situation, let alone a constitutionally 5 unlawful arrest, Cornell’s reasoning does not apply and is no help to Plaintiff. Therefore, 6 Plaintiff has not offered a legal argument sufficient to convince this Court that it 7 committed clear error in deciding that Plaintiff had not satisfied the elements of a Bane 8 Act claim that could survive summary judgment. 9 A motion for reconsideration is not a place for Plaintiff to reiterate the same 10 arguments (i.e. the legality of his conduct or the unreliability of the officers’ statements) 11 he has already made at the summary judgment stage. Nor does it provide an avenue for 12 Plaintiff to raise new arguments that could have reasonably been raised earlier in the 13 litigation. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). 14 Following a careful reading of Plaintiff’s moving papers, the Court finds that there is no 15 basis to find that the Court committed clear error in the challenged Summary Judgment 16 Order.6 17 3. Intervening Change in Controlling Law 18 As with ECF No. 206, Plaintiff only cites cases that were decided before the Order 19 of this Court at issue. Therefore, Plaintiff has failed to point to an intervening change in 20 controlling law that would justify reconsideration of this Court’s decision. 21 22 23 24 25 6 The Court further noted in its Summary Judgment Order that even if Plaintiff had proven the alleged constitutional violations, Defendants would have been entitled to qualified immunity. ECF No. 200 at 26 33, fn. 9. Thus, even if Plaintiff had convinced the Court of clear error as to reasonable suspicion, qualified immunity presented an additional hurdle that Plaintiff failed to surmount. 27 1 II. Plaintiff’s Amended Application for Order 2 Plaintiff’s Amended Application for an Order asks: (1) for the recusal of all non- 3 judicial staff from his case, (2) that Judge Curiel certify he personally read and decided 4 the present ex parte matters; (3) that Plaintiff be allowed to exceed the page limit; (4) that 5 Judge Curiel be recused.7 To the extent that Plaintiff uses this Application to attempt to 6 relitigate the details of the Court’s Summary Judgment order, the Court will pass over 7 these arguments as being improperly raised, and because this Court has already addressed 8 the same arguments in its analysis of Plaintiff’s Motions for Reconsideration above. 9 The overarching theme of Plaintiff’s Application is Plaintiff’s perception that 10 judicial staff are biased against him and that Judge Curiel “did not read the briefing and 11 documents that went into ECF 200.” ECF No. 221-1 at 47. Plaintiff also alleges that 12 “Plaintiff has had issues for years with the staff attorneys and others in this court which is 13 not an easy issue to deal with or discuss and a separate case to remedy the injustice and 14 get them off of Plaintiff’s case is proceeding in this court in case 3:20-cv-01490.” Id. 15 This perception is supported, according to Plaintiff, by the outcome against him in the 16 Court’s summary judgment Order, as well as by what Plaintiff perceives to be the 17 outcome in ECF No. 211 (Order Denying Plaintiff’s Application for an Order Declaring 18 Plaintiff Does Not Have to Pay Costs). 19 Turning first to Plaintiff’s allegations of bias by the judiciary and its staff, 20 Plaintiff’s discovery of “author” names in Word document metadata is not the smoking 21 gun that he believes it to be, as the Court has already explained. ECF No. 111 at 1-2 22 23 24 7 As to Plaintiff’s request to be allowed to exceed the page limit, this Court admonishes Plaintiff not to overstep the procedural bounds laid out in the Local Rules. When parties violate local rules, the district 25 court has discretion to devise such sanctions as it deems appropriate, short of granting summary judgment based on the violation. Rossi v. City of Lakewood, 363 Fed. Appx. 519, 519 (9th Cir. 2010). 26 However, since the Court has read and considered Plaintiff’s filings in their entirety in issuing this decision, this Court will grant Plaintiff permission to submit extra pages in this instance. 27 1 (“Contrary to [P]laintiff’s baseless accusations, the staff members whose names can be 2 seen in the metadata have only had some ministerial or other clerical involvement in 3 processing Court documents.”) Judicial clerks do assist in the researching and drafting of 4 orders in this Court, as is the case in all federal courts and indeed in most courts across 5 the country. However, the ultimate decision-making and reasoning in Plaintiff’s case as 6 to motions filed with this Court have rested with and been approved by the judge who has 7 signed the Court’s orders, Judge Curiel. This Court will not countenance Plaintiff’s 8 repeated and paranoiac allegations that there is a conspiracy against him or that this Court 9 has failed to read, review, or decide Plaintiff’s motions. As for Plaintiff’s request that 10 Judge Curiel be recused from this case, Plaintiff has failed to show any facts supporting 11 any improper interest or other factor supporting such recusal. Plaintiff merely insists that 12 “[i]t appears he [Judge Curiel] is doing nothing or relying on his staff, showing 13 differential treatment of Plaintiff or a disinterest in his case and right, not reading the 14 briefing etc.” ECF No. 221-1. Plaintiff’s personal belief that an unfavorable outcome in 15 his case can only stem from bias or lack of attention is wholly unsupported. 16 Further, the case Plaintiff cites in support of recusal fails to provide succor.8 In 17 Liteky v. United States, 510 U.S. 540, 555 (1994), the Supreme Court held that even 18 where a judge may be “exceedingly ill disposed” toward a litigant, a judge is not 19 recusable on that basis for bias or prejudice, since “his knowledge and the opinion it 20 produced were properly and necessarily acquired in the course of the proceedings . . .” 21 This Court has never been, nor ever given any indication of being, ill disposed toward 22 23 24 8 Plaintiff’s citation to Berger v. United States, 255 U.S. 22, 35 (1921), is similarly unavailing. Berger 25 dealt with whether affidavits were sufficient to support a charge of bias against a judge, an issue not present in Plaintiff’s case because he has not offered any affidavits. Additionally, Berger itself clearly 26 states that the section of the Judicial Code at issue “was never intended . . . to enable a discontented litigant to oust a judge because of adverse rulings made.” Id. at 31. 27 1 Plaintiff. In fact, the Court has been consistently lenient in allowing consideration of 2 Plaintiff’s filings despite their repeated procedural impropriety.9 Far from showing bias 3 against Plaintiff, the Court’s actions evince the repeated exercise of lenity in favor of 4 Plaintiff given his pro se status. 5 Plaintiff also believes that this Court ordered costs assessed against him, which 6 Plaintiff then interprets as evidence of bias. ECF No. 221-1 at 50. As the Court already 7 explained in its previous Order (ECF No. 218), Plaintiff has misread, or failed to read, the 8 Court’s Order at ECF No. 211. Contrary to Plaintiff’s assertions, the Court did not order 9 costs assessed against Plaintiff. The Court merely directed Plaintiff to comply with the 10 procedure for determining what costs, if any, the prevailing party would be entitled to 11 receive from Plaintiff. However, no decision has been made as to whether such costs 12 should be assessed at all, given Plaintiff’s indigent status. The Court requires a full 13 examination of the circumstances in order to make that determination, as this Court has 14 already explained in ECF No. 218 (“At this time, no decision has been issued as to how 15 much, if anything, Plaintiff will need to pay Defendants. ECF No. 211 simply directs the 16 parties to follow the appropriate procedure for presenting information to the Court as to 17 what costs are claimed and allows Plaintiff the opportunity to contest costs once those 18 costs are made clear to the Court.”).10 ECF No. 218 at 2. Thus, Plaintiff’s contentions that 19 the Court has ordered costs against him are mistaken. As such, each of the grounds relied 20 upon to demonstrate bias are frivolous and unavailing. 21 22 23 9 For example, this Court has chosen to consider Plaintiff’s instant Motions for Reconsideration despite 24 the fact that the Court would be justified in denying them solely on the basis of their procedural incorrectness, supra fn. 1. 25 10 In addition to electronically downloading a copy of docketed filings from CM/ECF, Plaintiff may 26 obtain a copy of ECF No. 218, or any other filing on the docket, by going to the office of the Clerk of Court in person. 27 1 |. Conclusion 2 For the reasons stated above, this Court HEREBY ORDERS that Plaintiffs 3 || Motion for Reconsideration of ECF No. 199, Plaintiff's Motion for Reconsideration of 4 || ECF No. 200, and Plaintiff's Amended Application for Order (ECF No. 221) are 5 || DENIED. As the Clerk of Court was previously directed by this Court’s Summary 6 || Judgment Order to close the case, this conclusively ends the matter. At this point, any 7 ||remedy remaining to Plaintiff lies with the Appellate Court. 8 IT IS SO ORDERED. 9 Dated: October 12, 2021 < 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 20 28 19-cv-00751-GPC