ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under 42 U.S.C. § 1983. Pending before the court are three motions to lift the previously imposed stay. Included within one of plaintiff's motions for reinstatement is a motion to remove the undersigned from the case, filed pursuant to 28 U.S.C. § 144, and a motion for sanctions against the defendants. (See Doc. No. 60.) For the following reasons, it will be recommended that the motion to lift the stay be granted. Plaintiff's motion to remove the undersigned will be denied.
In his complaint filed in this action plaintiff alleges as follows. On January 4, 2002, prison officials at CSP-Sacramento placed the facility on lockdown following a violent incident in the dining hall between Southern Mexican inmates and correctional staff. During the extended lockdown, plaintiff was not allowed outdoor exercise time, canteen privileges, quarterly packages, or visitation. In addition, prison officials issued a memorandum stating that all tobacco products would be considered contraband in 30 days. On two separate occasions during the extended lockdown, plaintiff's attorney attempted to visit him but prison officials denied plaintiff the right to see his attorney. Prison officials also denied plaintiff access to the law library. According to plaintiff, as a result of this lockdown he had virtually no permissible outof-cell activity from January 2002 to August 2002.
Based upon these allegation plaintiff claims that: defendants denied him outdoor exercise and access to the canteen for more than eight months in violation of the Eighth Amendment; defendants interfered with his access to the courts by denying him visits with his attorney and access to the law library in violation of the First Amendment; defendants denied him equal protection and due process by imposing lockdown conditions on him while allowing privileges to those designated "critical workers" in violation of his rights under the Fourteenth Amendment; and defendants' conduct violated California Penal Code § 825(b) and California Code of Regulations Title 15, § 3175.
Defendants moved for summary judgment in January 2009. In June 2009, it was recommended that defendants' motion for summary judgment on plaintiff's Eighth Amendment claims be denied. In those findings and recommendations it was determined that plaintiff claim was "virtually identical" to that presented in Norwood v. Alamedia, No. Civ. S-03-2554 GEB GGH (E.D. Cal.) The June 2009 findings and recommendations also recommended granting defendants' summary judgment motion on plaintiff's First Amendment claims of denial of access to the courts. Third, it was recommended that defendants' motion for summary judgment with respect to the affirmative defense of qualified immunity be denied. Finally, it was recommended that plaintiff's Fourteenth Amendment equal protection and due process claims, his state law claims brought under California Penal Code § 825 and California Code of Regulations Title 15, 3175(a)-(c) and his Eighth Amendment claim challenging the banning of tobacco from CSP-Sacramento be dismissed for failure to state a cognizable claim.
Defendants filed objections to the findings and recommendations. On September 9, 2009, the assigned district judge stayed this action. In doing so, the district judge stated that: since the issuance of the findings and recommendations, the Court of Appeals has reversed the district court's decision in Norwood v.
Vance, No. 2:03-cv-2554-GEB-GGH, on which the magistrate judge's findings and recommendations in the instant case had relied heavily. The Norwood petitioner has since sought rehearing en banc and the Court of Appeals has directed appellants to file a response. [¶] Because the Court of Appeals' resolution of Norwood is highly relevant to the resolution of the instant case, particularly on the issue of qualified immunity of the defendants in factual circumstances virtually identical between the two cases, the court finds that it is appropriate to stay the case pending the Norwood decision.
(Doc. No. 57 at p. 1-2.) Accordingly, this action was stayed pending resolution of the motion for rehearing en banc in Norwood. Furthermore, the defendants were ordered to notify the court within twenty days of the resolution of the motion in Norwood. (See id. at p. 2.) On January 7, 2010, the United States Court of Appeals denied the petition for rehearing en banc in Norwood. See Norwood v. Vance, 591 F.3d 1062, 1064 (9th Cir. 2010), cert. denied, ___U.S.___, 131 S. Ct. 1465 (2011).
II. MOTION FOR REINSTATEMENT
In January 2012, plaintiff filed a motion to return the case to the active calendar. (See Doc. No. 59.) In that motion, plaintiff correctly notes that the motion for rehearing en banc in Norwood was decided by the Ninth Circuit in January 2010. See Norwood, 591 F.3d at 1064.*fn1
Therefore, it will be recommended that the motion to reinstate this case to active status be granted and that the previously issued stay be lifted.
Plaintiff has also filed a motion to recuse the undersigned pursuant to 28 U.S.C. § 144. (See Doc. No. 60.) Section 144 states that:
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 ...