Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Norman Peck v. United States of America

August 31, 2011

NORMAN PECK, PLAINTIFF,
v.
UNITED STATES OF AMERICA,
DEFENDANT.



ORDER AND FINDINGS AND RECOMMENDATIONS

This matter came before the court on March 18, 2011, for hearing of defendant's properly noticed motion to dismiss the action for lack of subject matter jurisdiction. Assistant U.S. Attorney Edward A. Olsen appeared for defendant United States of America. No appearance was made by or on behalf of plaintiff, who is proceeding pro se.*fn1

Oral argument was heard, and defendant's motion to dismiss was taken under submission. Upon consideration of the briefing on file, defendant's arguments at the hearing, and the entire file, the court recommends that defendant's motion to dismiss be granted. Below, the court also addresses plaintiff's various motions.

BACKGROUND

Plaintiff, a former employee of the United States Department of the Interior, commenced this action in Sacramento County Superior Court on December 15, 2010 by filing a complaint for money damages against three supervisory employees who were involved in the termination of plaintiff's employment. (Notice of Removal, Ex. A (Doc. No. 1-1) at 1-9.)

In his original complaint, plaintiff alleged that defendant Beth Wenstrom was his immediate supervisor and defendants Lance Bishop and Karen Barnette were higher level supervisors who were involved in disciplinary proceedings initiated against plaintiff by defendant Wenstrom. (Id. at 1-9.) Plaintiff alleged causes of action for breach of contract (causes of action Nos. 1 & 2), actual fraud (Nos. 3, 5 & 11), fraud by nondisclosure (No. 4), breach of fiduciary duty (No. 6); denial of union representation (No. 7); denial of due process (No. 8); deprivation of civil rights (No. 9), breach of obligation (No. 10), loss of employment opportunities (No. 12), intentional infliction of emotional distress (No. 13); and an accounting (No. 14). (Id. at 9-40.)

Pursuant to 28 U.S.C. § 2679, the United States removed the action to this court on January 14, 2011, substituting itself as defendant in place of defendants Wenstrom, Bishop, and Barnette. (Doc. No. 1.) Attached to the Notice of Removal is a Certification of Scope of Federal Employment in which Sylvia Quast, Chief of the Defensive Civil Litigation Unit in the Office of the United States Attorney for the Eastern District of California, certifies that defendants Wenstrom, Bishop, and Barnette were acting within the course and scope of their employment with the United States Department of the Interior at all times material to the incidents alleged in plaintiff's complaint. (Notice of Removal, Certification of Scope of Federal Employment (Doc. No. 1-3) at 1.)

Upon receipt of defendant's Notice of Removal, the Clerk of the Court assigned this action a case number that includes the initials of the randomly selected District Judge and Magistrate Judge, as required by this court's automated case assignment plan. Local Rules, App.

A. Because plaintiff is proceeding pro se, under this court's Local Rules the action was automatically referred to the assigned magistrate judge for all purposes, including dispositive and non-dispositive motions and matters. Local Rule 302(c)(21); 28 U.S.C. § 636(b)(1).

On January 21, 2011, defendant filed a motion to dismiss the action for lack of subject matter jurisdiction. (Doc. No. 3.) Plaintiff responded by filing a first amended complaint.*fn2 (Doc. No. 4.) The new pleading adds Federica Lee as a defendant. In a declaration submitted in support of defendant's first motion to dismiss, Ms. Lee, a Human Resources Officer employed by the Department of the Interior, had described her involvement with the removal of plaintiff from federal service and stated that the relevant files contain no evidence that plaintiff filed a grievance with the union, filed an appeal with the Merit Systems Protection Board, or initiated contact with an EEO counselor or filed any complaint of discrimination with respect to his removal from federal service. (Defendant's Mot. to Dismiss (Doc. No. 3), Decl. of Federica Lee dated Jan. 21, 2011.)

The causes of action in plaintiff's amended complaint are the same as those in his original complaint except that the claim for deprivation of civil rights (No. 9) has been replaced with another breach of contract claim against the defendants previously sued, plaintiff's claim for an accounting (No. 14) has been renumbered as No. 15, and the new claim 14 is one for breach of obligation against defendant Lee.

On February 18, 2011, defendant filed and served a motion to dismiss plaintiff's amended complaint for lack of subject matter jurisdiction. (Doc. No. 14.) Plaintiff filed opposition to that motion on March 7, 2011.

On February 24, 2011, defendant filed a Certification of Scope of Federal Employment in which David Shelledy, Chief of the Civil Division in the Office of the United States Attorney for the Eastern District of California, certifies that defendants Wenstrom, Bishop, Barnette, and Lee were all acting within the course and scope of their employment with the United States Department of the Interior at all times material to the incidents alleged in plaintiff's amended complaint. (Certification of Scope of Federal Employment (Doc. No. 19) at 1.)

PLAINTIFF'S MOTIONS

The court turns first to plaintiff's motions for recusal and remand.

I. Motion for Recusal (Doc. No. 23)

Plaintiff's "Motion Concerning U.S. Magistrate Judge Dale A. Drozd," liberally construed by the Clerk of the Court as a motion for recusal, is based solely on plaintiff's mistaken belief that "[n]o Magistrate Judge has authority to participate in this civil action." (Doc. No. 23 at 1-2.)

To the extent that plaintiff's motion can be considered as a motion to disqualify pursuant to 28 U.S.C. § 28 U.S.C. § 455(a), the court notes that a decision regarding disqualification is made by the judge whose impartiality is at issue. Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994); United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986). A judge is required to disqualify himself from a case if his impartiality might reasonably be questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice against a party, 28 U.S.C. § 455(b)(1).

Rulings made during the course of a judicial proceeding that are unfavorable to a party or his case ordinarily will not support a bias or partiality claim unless they reveal an extra-judicial source for the ruling or "such a high degree of favoritism or antagonism as to make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 554 (1994). The same standard applies to remarks made during the course of a judicial proceeding. Id. Thus, where the source of alleged bias or prejudice is a judicial proceeding, a litigant seeking recusal must show a disposition on the part of the judge that "is so extreme as to display clear inability to render fair judgment." Id. at 551. Put another way, "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.