The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER DENYING PLAINTIFF'S MOTION TO RECUSE DISTRICT JUDGE AND MAGISTRATE JUDGE (DOC. 243)
ORDER DENYING PLAINTIFF'S MOTION FOR CASE TO BE HEARD BY THREE-JUDGE DISTRICT COURT (DOC. 246)
Plaintiff Kavin M. Rhodes ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the Court is: 1) Plaintiff's motion to recuse United States District Judge Lawrence J. O'Neill and the undersigned, United States Magistrate Judge Dennis L. Beck, filed July 25, 2011, and 2) Plaintiff's motion for his case to be heard by a three judge district court, filed August 24, 2011. Docs. 243, 246. The matter is submitted pursuant to Local Rule 230(l).
Section 455, Title 28 of the United States Code governs the disqualification of judges or magistrate judges. Plaintiff brings his motion pursuant to subsections (a) and (b)(1). Subsection (a) states: "Any . . . 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). Subsection (b)(1) states that a judge or magistrate shall disqualify himself "[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Id. § 455(b)(1). The provisions of § 455(a) and (b)(1) are self-enforcing.
Plaintiff also files the motion pursuant to 28 U.S.C. § 144, which states
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.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
If the judge to whom a timely motion is directed determines that the accompanying affidavit specifically alleges facts stating grounds for recusal under § 144, the motion must be referred to another judge for a determination of the merits. United States v. Sibla, 624 F.3d 864, 867 (9th Cir. 1980). The judge to whom the motion is directed is to determine independently whether all the circumstances call for recusal, and such matter rests within the sound discretion of that judge. Sibla, 624 F.2d at 868. Motions under § 144 are directed to the judge before whom the matter is pending, which in this instance would be the undersigned. Plaintiff has attached an affidavit to his motion. The Court assumes without deciding that Plaintiff's motion was timely filed.
Having set forth the legal standards, the Court now examines Plaintiff's affidavit.
Plaintiff contends that Judge O'Neill and the undersigned are engaged in a conspiracy with CDCR officials named in Plaintiff's third supplemental complaint, pursuant to the Racketeering Influenced Corrupt Organizations Act. Plaintiff lists several instances which he believes are evidence of Judge O'Neill and the undersigned's bias and prejudice against Plaintiff. Plaintiff first contends that Plaintiff's mail from the Court was delivered to the incorrect address. Pl.'s Aff. ¶ 2, Doc. 243. This allegation is without merit. Plaintiff's address was not updated due to clerical error, which was corrected when brought to the Court's attention. Additionally, Plaintiff was not prejudiced, as Plaintiff received the Court's orders afterwards.
Plaintiff alleges that the undersigned conspired with prison officials to have Plaintiff beaten and his legal property confiscated in order for the Court to dismiss Plaintiff's action pursuant to Rule 41 of the Federal Rules of Civil Procedure. Plaintiff's allegation of conspiracy is insufficient and implausible. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Plaintiff presents no evidence other than his own conclusory statements. This is not evidence of Judge O'Neill or the undersigned's bias or prejudice against Plaintiff.
Plaintiff next complains that the Court required Plaintiff to file a
third supplemental complaint without providing Plaintiff a copy of his
second amended complaint, which had been alleged confiscated by prison
officials. Pl.'s Aff. ¶¶ 3-4. As explained in the Court's April 7,
2011 Order, the Court does not provide Plaintiff, or any pro se
litigant, with a free copy of his second amended ...