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Andrew R. Lopez v. Ps. Cook

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 15, 2010

ANDREW R. LOPEZ, PLAINTIFF,
v.
PS. COOK, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

On December 9, 2010, plaintiff filed a document which he entitled, in part, "Plaintiff's Objections To Magistrate Judge's Rulings; Blanket Objections To Everything That Has Occurred [sic] Following Appointment Of Counsel On April 8, 2010 . . . ." The objections are construed by the court as a request for reconsideration of the magistrate judge's order and amended order, both filed on December 3, 2010.

In his first order of December 3, 2010 (Doc. No. 244), the assigned Magistrate Judge granted the requests filed by plaintiff's appointed counsel William Bishop to withdraw, set dates for the filing of pretrial statements by the parties, re-set the pretrial conference, trial confirmation hearing and trial dates in this action, denied all motions and requests filed by plaintiff Lopez during the time he was represented by appointed counsel*fn1 , and advised plaintiff that no further requests for appointment of counsel would be entertained by the court. In the second order of December 3, 2010 (Doc. No. 245), the assigned Magistrate Judge merely corrected his order filed on June 18, 2010, to reflect that this action is proceeding on plaintiff's fifteenth cause of action, as well as the other claims specified in the June 18, 2010 order. Pursuant to E.D. Local Rule 303(f), a magistrate judge's orders shall be upheld unless "clearly erroneous or contrary to law." Upon review of the entire file, the undersigned finds that it does not appear that the magistrate judge's rulings were clearly erroneous or contrary to law.

Plaintiff has also requested that the court rule on requests he filed on November 28, 2007 (Doc. No. 167) and January 22, 2009 (Doc. No. 185). Court records indicate that plaintiff's November 28, 2007 motion was denied by order filed on January 9, 2008 (Doc. No. 175). Plaintiff's January 22, 2008, filing was entitled, "Plaintiff's Notice Of Abuse Of Discretion And Unconstitutionality And Request For Cure." The filing was not responded to by the court because it was not presented as a motion, or even as a request. Liberally construed, in that filing plaintiff again sought the appointment of counsel on his behalf, removal of the assigned Magistrate Judge, and statistical data on appointment of counsel requests and court rulings in response thereto. Plaintiff's dated request for appointment of counsel has been rendered moot by subsequent events and his request for statistical data with respect to requests for appointment of counsel is without merit. Therefore, those requests will be denied. To the extent plaintiff seeks the recusal of the assigned Magistrate Judge, that request will also be denied because plaintiff's objections are based upon objections to the court's rulings and not on any extra-judicial factors. See Clemens v. U.S. Dist. Court for Central Dist. of California, 428 F.3d 1175, 1178 (9th Cir. 2005) ("In determining whether disqualification is warranted under [28 U.S.C.] § 455(a), we also apply the general rule that questions about a judge's impartiality must stem from 'extra-judicial' factors, Liteky v. United States, 510 U.S. 540, 554, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994), that is, from sources other than the judicial proceeding at hand.").

Finally, plaintiff's renewed request for appointment of counsel and his request that all current pre-trial and trial dates be vacated will be denied.

Therefore, IT IS HEREBY ORDERED that: 1. Upon reconsideration, the order and amended order of the magistrate judge filed December 3, 2010 (Doc. No. 244 and 245), are affirmed;

2. Plaintiff's requests filed on January 22, 2009 (Doc. No. 185) are denied;

3. Plaintiff's December 9, 2010 request for appointment of counsel and that dates for the filing of pretrial statements by the parties, pretrial conference, trial confirmation hearing and trial be vacated (Doc. No. 247), are denied. The parties are required to comply with the deadlines set in the court's December 3, 2010 order (Doc. No. 244).


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