ORDER (1) DENYING MOTION TO DISQUALIFY MAGISTRATE vs. JUDGE (ECF No. 14); and
(2) DISMISSING THIRD AMENDED COMPLAINT FOR FAILING TO COMPLY WITH COURT ORDER; F
AILING TO STATE A CLAIM AND AS FRIVOLOUS PURSUANT TO 28 U.S.C. §§ 1915(e)(2)(B)
WILLIAM Q. HAYES, District Judge.
I. Procedural History
On February 4, 2011, Plaintiff, a state inmate currently incarcerated at Ironwood State Prison located in Blythe, California, and proceeding pro se, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. In his Complaint, Plaintiff alleged that he was denied access to the courts when he was housed at Calipatria State Prison in 2009. Plaintiff also filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [ECF No.2].
On March 30, 2011, the Court granted Plaintiff's Motion to Proceed IFP and dismissed his Complaint for failing to state a claim upon which relief could be granted. (ECF No.3 at 4-5.) The Court granted Plaintiff leave to file an Amended Complaint in order to correct the deficiencies of pleading identified by the Court. Id. Plaintiff was also cautioned that any Defendants not named and claims not re-alleged in the Amended Complaint would be deemed to have been waived. Id. (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Plaintiff then filed his First Amended Complaint ("FAC"). In his First Amended Complaint, Plaintiff no longer names as Defendants, J. Chiang or B. Leonard. Thus, those Defendants were dismissed from this action. (ECF No.7 at 2.)
On July 25, 2011, the Court, once again, dismissed Plaintiff's First Amended Complaint for failing to state a claim upon which relief could be granted but permitted Plaintiff leave to file a Second Amended Complaint. (ECF No.7 at 5.) Plaintiff failed to submit a Second Amended Complaint within the time frame set forth in the Court's Order but the Court permitted Plaintiff to file a Second Amended Complaint ("SAC") on September 7, 2012. (ECF NO.9.) The Court, once again, conducted the required sua sponte screening and found that Plaintiff's Second Amended Complaint failed to state a claim upon which relief could be granted and was frivolous. (ECF No. 10 at 6-7.) Again, Plaintiff was granted leave to file an Amended Complaint to correct the deficiencies of pleading identified by the Court. Plaintiff was specifically admonished by the Court that he must comply with both the Federal Rules of Civil Procedure Rule 8 and Local Rule 8.2 which provides that prisoners must use the Court's form complaint and any additional pages are "not to exceed fifteen (15) in number." ( Id. at 3.)
Instead of complying with the Court's Order, Plaintiff filed his Third Amended Complaint ("TAC") which fails to comply with the Court's previous Order, Rule 8 or Local Rule 8.2. (ECF No. 12.) In addition, Plaintiff has filed a "Motion to Disqualify Magistrate Judge." (ECF No. 14.)
II. MOTION TO DISQUALIFY MAGISTRATE JUDGE
Plaintiff has filed a "Motion to Disqualify Magistrate Judge." (ECF No. 14.) In this Motion, Plaintiff contends that the Magistrate Judge in this matter has "performed prejudicially and has caused undue delay, and hindered Plaintiff s ability to meaningfully litigate his case and his serious constitutional claims." (ECF No. 14 at 1.) However, while Plaintiff seeks to disqualify Magistrate Judge Jan Adler from this matter, Magistrate Judge Adler has not issued any rulings in this case. It has been this Court who has issued the rulings in this matter and therefore, the Court construes Plaintiff s Motion as one seeking recusal of United States District Judge William Hayes.
"In the absence of a legitimate reason to recuse himself, a judge has a duty to sit in judgment in all cases coming before him, '" United States v. Holland, 501 F.3d 1120, 1123 (9th Cir. 2007) (citing Laird v. Tatum, 409 U.S. 824, 837 (1972));, "except those in which [his] impartiality might reasonably be questioned.'" Id. (citing 28 U.S.C. § 455(a) ("[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.")). A motion to disqualify "must be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance." Liteky v. United States, 510 U.S. 540, 549 (1994).
Here, Plaintiff claims this Court's impartiality is in question based, in part, on the previous Orders dismissing his pleadings for failing to state a claim and as frivolous pursuant to the sua sponte screening provisions of 28 U.S.C. § 1915(e)(2) and § 1915A(b). Plaintiff claims that this Court has been "litigating for the Defendants, before the case is even served on them." (ECF No. 14 at 1.) As the Court has stated to Plaintiff in all the prior orders, the Prison Litigation Reform Act ("PLRA") requires the Court to engage in a screening process of all complaints filed by prisoners. Under the PLRA, the Court must sua sponte dismiss any prisoner civil action, or any portions therefore, which are frivolous, malicious, fail to state a claim, or which seek damages from defendants who are immune. See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
The Supreme Court has held that judicial rulings and the opinions formed by judges on the basis of facts introduced in the course of proceedings "almost never constitute a valid basis for a bias or partiality motion... unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555; see also Holland, 501 F.3d at 1124 ("[Section] 455 is limited by the extra judicial source' factor which generally requires as the basis for recusal something other than rulings, opinions formed or statements made by the judge during the course of the [case.]"). "Put differently, the judge's conduct, " including "the mere fact that a judge has previously expressed an opinion on a point of law, " or has issued adverse "prior rulings in the proceeding, " does not "except in the rarest of circumstances'" form the sole basis for recusal under § 455(a)." Holland, 501 F.3d at 1124-25 (citations omitted); see also Leslie v. Grupo ICA, 198 F.3d 1152, 1159-60 (9th Cir. 1999).
Plaintiff contends that this Court has "caused a suspicious undue delay in this case" and argues that this Court delayed the screening of this matter for two years. (ECF No. 14 at 2.) A review of the Court's docket indicates that this is incorrect. Plaintiff initially filed this action on February 4, 2011. (ECF No.1.) The Court conducted the first sua sponte screening on March 30, 2011. (ECF No.3.) Plaintiff filed his First Amended Complaint on April 21, 2011. (ECF No.4.) The Court, again, conducted the required sua sponte screening on July 25, 2011. (ECF No.7.) Despite the Court's Order allowing Plaintiff forty five (45) days to file a Second Amended Complaint, Plaintiff waited nearly fourteen months to file his Second Amended Complaint. (ECF No.9.) Despite the untimeliness of this pleading, the Court permitted Plaintiff to proceed in this action. Therefore, the delays in this action have been due to Plaintiffs failure to timely comply with the Court's Orders.
Plaintiff has made no showing of "rare circumstances, " Holland, 501 F.3d at 1124 n.4, or "deep-seated favoritism or antagonism" of any sort here. Liteky, 510 U.S. at 555. And absent some specific allegation of personal bias, prejudice or interest, the mere fact that this Court exercised its statutory duty under 28 U.S.C. § 1915(e)(2) and § 1915A(b) and found his pleadings insufficient to state a claim, is not enough to show that the Court's impartiality may reasonably be questioned. See Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1980) ("In the absence of specific allegations of personal bias, prejudice, or interest, neither ...