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Beck v. Dileo

November 23, 2010

REVEREND BECK, PLAINTIFF,
v.
DR. L. DILEO, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR RECUSAL AND MOTION FOR JOINDER OF PARTIES (Doc. 10)

ORDER STRIKING PLAINTIFF'S AFFIDAVIT AND MEMORANDUM OF LAW (Doc. 12)

ORDER DENYING PLAINTIFF'S MOTION FOR CERTIFICATE OF FAMILIARITY, MOTION FOR APPOINTMENT OF COUNSEL, MOTION FOR AN ORDER COMPELLING DISCOVERY, AND MOTION FOR JOINDER OF PARTIES (Doc. 13)

I. Introduction

Plaintiff Reverend Beck ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. The complaint in this action was filed on April 7, 2010. On April 26, 2010, as a matter of right, Plaintiff filed an amended complaint that is currently pending screening.*fn1 Fed. R. Civ. Proc. 15(a)(1). On August 6, 2010, Plaintiff filed a motion for recusal of the undersigned and to add parties to the action, including the undersigned. (Doc. 10.) On September 20, 2010, Plaintiff filed an affidavit and memorandum of law in support of his complaint. (Doc. 12.) On October 20, 2010, Plaintiff filed a motion for certificate of familiarity, motion for appointment of counsel, motion for order compelling discovery, and motion for joinder of parties. (Doc. 13.)

II. Motion for Recusal

Plaintiff seeks recusal of the undersigned due to his adverse ruling in a prior case that is being appealed to the Ninth Circuit. (Doc. 10, p. 3.) Plaintiff's allegation that the undersigned has first hand knowledge that Plaintiff's rights are being violated and refuses to act, merely restates the prior argument that Plaintiff received an adverse ruling in a prior case. (Id. at 3.)

A judge must disqualify himself "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding . . . ." 28 U.S.C. § 455(b)(1). The standard for recusal "is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Taylor v. Regents of University of California, 993 F.2d 710, 712 (9th Cir. 1993); United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). The alleged prejudice must stem from an extra judicial source, prior rulings made by a judge are not sufficient cause for recusal. United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010); Studley, 783 F.2d at 939; Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984).

Plaintiff motion is based on his disagreement with prior rulings made by the Court and is not a legitimate ground for seeking for recusal. Johnson, 610 F.3d at 1147. The motion for recusal is denied, with prejudice.

III. Motions for Joinder of Parties

Plaintiff's motions for joinder of parties is denied. Since Plaintiff has already amended his complaint as a matter of right, he will need to seek leave of the Court to file an amended complaint to add additional parties or claims. Fed. R. Civ. P. 15(a)(2). Further, Plaintiff is not precluded from initiating a new action if he wishes to raise new, unrelated claims. Fed. R. Civ. P. 18(a).

IV. Motion for Certificate of Familiarity

Plaintiff seeks a certificate of familiarity pursuant to Rule 63 of the Federal Rules of Civil Procedure. However, Rule 63 states "[i]f a judge conducting a trial or hearing is unable to proceed, any other judge may proceed upon certifying familiarity with the record . . . ." Fed. R. Civ. P. 63. Since this action is at the screening ...


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