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Hollis v. York

September 29, 2009

MICHAEL EUGENE HOLLIS, PLAINTIFF,
v.
RUSSEL YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTIONS

(Docs. 7, 8, 9, 10, 11, 13, 14, 16)

RESPONSE DUE WITHIN 30 DAYS

Plaintiff Michael Eugene Hollis ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is suing Defendants for the alleged violation of his civil rights while housed in the Fresno County Jail. Before the Court are multiple motions from Plaintiff.

I. Plaintiff's Motions

Plaintiff filed his "Motion To Compel Sheriff Margaret Mims To Produce A Certified Copy Of Plaintiff's Prisoner Trust Account Statement" on April 29, 2009 (hereinafter "4/29/09 Motion"). (Doc. #7.) Plaintiff was ordered to submit a certified copy of his prison trust account statement in the Court's order granting him IFP status. Plaintiff claims that prison officials at Fresno County Jail have been unresponsive to his requests for a trust account statement and requests an order from the Court compelling them to provide it.

Plaintiff filed his "Motion For A Change Of Venue Or U.S. District Judge; And An Order To Transfer Plaintiff Immediately" on May 22, 2009 (hereinafter "5/22/09 Motion"). (Doc. #8.) Plaintiff seeks either a change in venue or recusal of U.S. District Judge Oliver W. Wanger from this action because of an alleged conflict of interest arising from the fact the Judge Wanger also presided over Plaintiff's criminal appeal. Plaintiff also alleges that he was promised by the U.S. Marshal's office that he would be transferred out of Fresno County Jail and that "it is now time for [the U.S Marshal's office] to honor [their] word." (Compl. 1:21-22.)

Plaintiff filed his "Motion For Emergency Injunction; Court Ordered Transfer For Medical Reasons" on June 2, 2009 (hereinafter "6/2/09 Motion"). (Doc. #9.) Plaintiff filed his "Motion For Emergency Injunction; Court-Ordered Transfer To Restore Plaintiff's Right To Access A Grievance Procedure And To Access United States Courts Without Harassment" on June 5, 2009 (hereinafter "6/5/09 Motion"). (Doc. #10.) Plaintiff filed his "Motion For Emergency Injunction; Court-Ordered Medical Transfer" on June 8, 2009 (hereinafter "6/8/09 Motion"). (Doc. #11.) Plaintiff filed his "Emergency Motion For Court-Ordered Transfer; Ongoing Harassment/Retaliation By Defendants" on June 11, 2009 (hereinafter "6/11/09 Motion"). (Doc. #13.) Plaintiff filed his "Motion For Emergency Injunctive Relief; Court-Ordered Transfer And Protective Order" on June 18, 2009 (hereinafter "6/18/09 Motion"). (Doc. #14.) Plaintiff requests the Court to order him to be transferred away from Fresno County Jail because staff have been harassing him, preventing him from filing grievances, and denying medical care.

Plaintiff filed his "Motion For Court-Ordered Transfer Of Pro Per Federal Prisoner Back Into This Courts Jurisdiction" on August 24, 2009 (hereinafter 8/24/09 Motion). (Doc. #16.) Plaintiff complains that he was transferred 1300 miles away to the Federal Correctional Institute in Big Spring, Texas and requests the Court to order his transfer back to California.

II. Discussion

A. Motion for Change of Venue/Recusal

Plaintiff requests a change of venue, or alternatively, disqualification of Judge Wanger. A motion for change of venue is governed by 28 U.S.C. § 1404, which provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Plaintiff has not alleged any facts justifying a change of venue under 28 U.S.C. § 1404. Plaintiff does not allege that conducting the trial would be more convenient in another venue.

As for being "in the interest of justice", Plaintiff's request is essentially a motion requesting recusal of Judge Wanger. Requests for recusal are governed by 28 U.S.C. § 144 and 28 U.S.C. 455. 28 U.S.C. § 144 provides: Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. 28 U.S.C. § 455 provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). "Under both recusal statutes, the substantive standard is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (internal quotations and citations omitted). The alleged bias that justifies recusal must usually stem from an extra-judicial source. Liteky v. United States, 510 U.S. 540, 554-56 (1994). A judge is not rendered recusable for bias or prejudice based on knowledge learned from earlier proceedings involving the same parties. Id. at 551 ("Also not subject to deprecatory characterization as "bias" or "prejudice" are opinions held by judges as a result of what they learned in earlier proceedings. It has long been regarded as normal and proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving the same defendant."); U.S. v. Frias-Ramirez, 670 F.2d 849, 853 n.6 (9th Cir. 1982) (information, beliefs and biases acquired while presiding over trial of co-defendant did not warrant disqualification); Lyons v. U.S. 325 F.2d 370, 376 (9th Cir. 1963) ("A mere showing of prior judicial exposure to the present parties or questions will not invoke [28 U.S.C. § 144].").

Plaintiff has not alleged facts justifying recusal. Plaintiff alleges that "a change of . . . U.S. District Judge" is justified "based on a conflict of interest between the criminal appeal and the section 1983 civil rights lawsuit being heard in that same court or by that same U.S. District Judge." The fact that Judge Wanger presided over Plaintiff's criminal appeal is not sufficient to disqualify him from presiding over Plaintiff's civil rights lawsuit. Plaintiff provides no other allegations demonstrating why Judge Wanger is disqualified from presiding over this action. Plaintiff has not identified any actions evincing bias, nor has Plaintiff identified any information learned by ...


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