Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262. Pending before this court are the Magistrate's Findings and Recommendation of dismissal of two defendants, plaintiff's motion for reconsideration of the Magistrate's denial of a request for a stay, and plaintiff's request to disqualify both the Magistrate Judge and the undersigned.
Through a series of unfortunate circumstances, the case comes before this court in an unusual posture. On November 6, 2006, plaintiff filed his First Amended Complaint ("FAC"). In this complaint, plaintiff added two new defendants, D. McCarger (or McCargar) and D. Hoffman, and the new allegations that these defendants had denied plaintiff the ability to make copies in connection with past litigation brought by plaintiff.
On December 8, 2006, the Magistrate Judge filed findings and recommendations, which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. The Magistrate recommended dismissing plaintiff's claims against the newly added defendants. After receiving two extensions of the time to file objections, plaintiff filed objections on March 1, 2007. The magistrate ordered service on other defendants, but not McCargar and Hoffman.
On June 29, 2007, defendants filed a motion for summary judgment. Although the magistrate's order recommending dismissal of defendants McCargar and Hoffman had not been adopted, this motion was brought only on behalf of the remaining defendants. On July 25, 2007, plaintiff filed a motion for stay (Doc. 123). This motion stated that plaintiff sought "a stay of summary judgment . . . relieving [plaintiff] of his obligation to respond to defendants' Motion for Summary Judgment pending the Court's ruling on Plaintiff's objections to the December 8, 2006 findings and recommendations . . . ."
On February 19, 2008, defendants' motion for summary judgment and plaintiff's motion for a stay were still pending. The Magistrate issued an order re-opening discovery, vacating without prejudice the summary judgment motion, and denying plaintiff's motion for a stay. (Doc. 137) However, the magistrate construed that motion as seeking a stay of a ruling on the November 6, 2006 Findings and Recommendations, rather than a stay of the summary judgment motion. The order stated that the findings and recommendations had been pending before this court since March 12, 2007, and that consideration of them would not be stayed. On March 3, 2008, plaintiff filed an "objection" to the February 19 order, pointing out this misconstrual of plaintiff's earlier motion for a stay. (Doc. 139) On the basis of this misconstrual, plaintiff sought to have the Magistrate disqualified from this action. This court denied plaintiff's request for disqualification on March 25, 2008, without discussion of the magistrate's misconstrual. (Doc. 142)
On December 30, 2008, plaintiff again moved for reconsideration of the Magistrate's February 19 order. This motion extensively discusses the fact that the November 2006 Findings and Recommendations are still outstanding, and seeks disqualification of both the Magistrate and the undersigned in light of the situation. This motion, and the November 2006 Findings and Recommendations, are currently pending before this court.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case.
In 1999 and early 2000, plaintiff was proceeding with a habeas petition in federal court. Plaintiff's FAC alleges that during this time, plaintiff was denied access to photocopying services, and that as a result, he was forced to file with the court the original and only copies of alleged "new evidence" obtained by plaintiff in support of his then-pending federal habeas petition. The court denied plaintiff's later request to be provided with copies of the documents plaintiff had submitted. As a result of being forced to file his only copies, plaintiff alleges that he was, inter alia, unable to "pursue further necessary judicial relief."
The complaint does not specify what form of relief plaintiff was unable to pursue. As the Magistrate's Findings and Recommendations noted, plaintiff's federal habeas petition was denied on the merits. The magistrate judge in that case stated that: to the extent that petitioner objects that he discovered new evidence after this petition was filed, and the new evidence was not considered, such evidence may not properly be considered here until petitioner has presented it to the California Supreme Court and exhausted his claims there.
Ex. I to Pl.'s FAC, Young v. Roe, Final Report and Recommendation of United States Magistrate Judge, No. 99-4892-RSWL (EE) (C.D. Cal. Apr. 16, 1002). Thus, the alleged limits on copies did not cause the court to reject plaintiff's evidence in evaluating his habeas petition.
Plaintiff's objections to the Magistrate's Findings and Recommendations specify that among the further relief plaintiff was presented from pursuing was the a state habeas petition that would have presented this evidence to the state court. Because he was forced to submit original copies of his exhibits, he was prevented from attaching those exhibits to a subsequent state habeas petitions on the same ...