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Bt v. California Regents San Diego State University

United States District Court, Ninth Circuit

September 4, 2013

[REDACTED], a minor, and [REDACTED], her natural guardian, Plaintiffs,
v.
CALIFORNIA REGENTS SAN DIEGO STATE UNIVERSITY et al., Defendants.

REDACTED ORDER: (1) GRANTING RENEWED MOTION TO PROCEED IN FORMA PAUPERIS; (2) DISMISSING FIRST AMENDED COMPLAINT WITH PREJUDICE; (3) DENYING REMAINING PENDING MOTIONS AS MOOT

GONZALO P. CURIEL, District Judge.

On February 12, 2013, plaintiff [REDACTED] ("Ms. [REDACTED]") filed a first amended complaint ("FAC") on behalf of herself and her minor daughter, [REDACTED] [REDACTED] (together, "Plaintiffs"). (ECF Nos. 10, 15.)

Ms. [REDACTED] filed the FAC after this Court instructed her to file amended versions of her initial complaint, motion to proceed in forma pauperis ("IFP"), and request for appointment of counsel. (See ECF Nos. 5, 6.)

Upon review of the Amended Motion to Proceed IFP, (ECF Nos. 12, 17), the Court determined the Motion was moot because Plaintiff had paid the required filing fee and did not request service of process by the U.S. Marshal. (See ECF Nos. 31, 32.) The Court thus denied the Amended Motion to Proceed IFP. (Id.)

Upon review of the Amended Motion for Appointment of Counsel, (ECF Nos. 13, 16), the Court determined appointment of counsel was not appropriate because the Amended Motion to Proceed IFP had been denied and because the Court determined Plaintiffs had little to no likelihood of success on the merits given the fantastical nature of Plaintiffs' allegations. (ECF Nos. 31, 32.) The Court thus denied the Amended Motion for Appointment of Counsel. (Id.)

The Court further noted that "a parent or guardian cannot bring an action on behalf of a minor child without retaining a lawyer." (Id. (citing Johns v. Cnty of San Diego , 114 F.3d 874, 877-78 (9th Cir. 1997).) The Court thus gave Ms. [REDACTED] until June 7, 2013, to retain counsel or face dismissal of the claims brought on behalf of Daughter. (ECF Nos. 31, 32 at 4.)

On May 6, 2013, defendant County of San Diego ("County") filed a motion to dismiss the FAC. (ECF Nos. 19, 29.) The Court set the County's Motion to Dismiss for a hearing on September 6, 2013. On May 28, 2013, defendants La Mesa-Spring Valley School District and John Parsons also filed a motion to dismiss the FAC, which the Court set for a hearing on September 20, 2013. (ECF Nos. 34, 35.) On July 25, 2013, defendant Wendy Belger (erroneously sued as "Wendy TBD") joined the County's Motion to Dismiss. (ECF No. 54.) Thereafter, on August 6, 2013, defendants David Morse & Associates, Bill McDaniel, and Julie McDaniel filed a motion to dismiss the FAC, which the Court also set for a hearing on September 20, 2013. (ECF No. 56.)

On June 11, 2013, Plaintiffs filed several motions, including: (1) a renewed motion to proceed IFP to obtain U.S. Marshal service; (2) an alternative request for an extension of time to serve the FAC; (3) a request for an extension of time to retain counsel for Ms. [REDACTED]'s daughter; (4) a motion for leave to file a second amended complaint; (5) a motion to disqualify judge; (6) a renewed motion for appointment of counsel; (7) and a motion for extension of time to respond to the County's Motion to Dismiss. (ECF Nos. 40, 43, 44, 45, 46, 47, 48, 49.)

On July 18, 2013, the Count filed an opposition to Plaintiffs' Motion for an Extension of Time to Respond to the County's Motion to Dismiss, noting Plaintiffs had not explained why they were unable to timely respond to the County's Motion or require a continuance of the September 6, 2013 hearing that, at the time, was seven weeks away. (ECF Nos. 52, 53.) On August 20, 2013, Plaintiffs filed another motion for extension of time to respond to the County's Motion to Dismiss. (ECF Nos. 57, 59.)

1. Motion to Disqualify Judge

Plaintiffs move to disqualify the undersigned judge because, in denying Plaintiffs' Amended Motion for Appointment of Counsel, the Court relied on language from Plaintiffs' FAC that the County also relied on in its Motion to Dismiss.

Plaintiffs note that both this Court's order and the County's Motion to Dismiss quote Plaintiffs' allegations regarding "multidimensional sexual experience[s]"; the Church of Scientology's practice of "mind f**king"; "cycle[s] of energy vampirism" in which defendants engage in a "predator[y] or parasitic lifestyle or demonic possession, " dependent upon locating "human hosts for their survival."

Plaintiffs argues "the defense has taken selected words or phrases from various areas of the plaintiff's Amended Complaint, out of context and strung them together in a couple of sentences and misconstrued the plaintiff's intended meaning." Plaintiffs then provide an explanation of the "selected words or phrases, " relying on a book called, Psychic Vampires: Protection From Energy Predators & Parasites, written by Joe H. Slate, Ph.D., along with another book entitled, Sacred Hunger: The Vampire in Myth and Reality, written by Michelle Belanger.

Plaintiffs argue the County failed to diligently investigate Plaintiffs' allegations before asserting Plaintiffs' claims were frivolous. Plaintiffs thus argue the undersigned should recuse himself because "plaintiffs have used this expert supported phrase to describe harmful experience and because the Court[]s reliance on this phrase as depicted by the defendant indicates a bias against the plaintiffs."

Plaintiffs claim "the Court has accepted obvious defense strategies from the [County], " including a defamatory attack on Ms. [REDACTED]'s credibility. Plaintiffs claim the Court disregarded the Plaintiffs' "references to expert support for her allegations, [and] appears to have been intimidated by mere defensive tactics." Plaintiffs further claim that the County's assertion that "it appears evident that the plaintiff who signed and presumably prepared the Complaint, suffers from an undiagnosed mental disorder" is a defensive tactic "meant to shed doubt on the plaintiff's credibility, [and] [i]mproperly influence the Court to hasten dismissal before any discovery can be conducted." Plaintiffs imply that the Court has shown bias against Plaintiffs by allowing the County to file a motion that contains such statements.

Plaintiffs further claim the Court's warning of dismissal if counsel was not obtained for Ms. [REDACTED]'s daughter showed bias because it came soon after the County's assertion that it appeared the author of Plaintiffs' FAC suffered from an undiagnosed mental disorder.

In sum, Plaintiffs claim the Court has shown bias against them "by allowing the defendants[] defense strategies to influence [the Court] into taking action to ma[k]e the determination that the plaintiffs claim is frivolous."

Recusal of a federal judge is governed by 28 U.S.C. §§ 144 and 145. A judge must "proceed no further" in a case if he "has a personal bias or prejudice" against or in favor of any party. 28 U.S.C. § 144. A judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" and "[w]here he has a personal bias or prejudice concerning a party." 28 U.S.C. § 455(b)(1).

"Under both statutes, recusal is appropriate where a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Yagman v. Republic Ins. , 987 F.2d 622, 626 (9th Cir.1993) (quotation omitted). A "reasonable person" is defined as a "well-informed, thoughtful observer, " as opposed to a "hypersensitive or unduly suspicious person." Clemens v. United States Dist. Ct. for the Cent. Dist. of Cal. , 428 F.3d 1175, 1178 (9th Cir.2005) (quotation & citation omitted). Further, under § 455(b)(1), a judge must recuse himself when he harbors actual bias. United States v. Holland , 519 F.3d 909, 915 (9th Cir. 2008).

Ordinarily, the party must allege "facts that fairly support the contention that the judge exhibits bias or prejudice directed toward a party that stems from an extrajudicial source." United States v. Sibla , 624 F.2d 864, 868 (9th Cir.1980) (emphasis added). This "generally requires as the basis for recusal something other than rulings, opinions formed[, ] or statements made by the judge during the course of the trial." Holland , 519 F.3d at 913-14. "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States , 510 U.S. 540, 555 (1994).

"[I]n the absence of a legitimate reason to recuse himself, a judge should participate in cases assigned." Holland , 519 F.3d at 912 (quotation & citation omitted).

First, the undersigned harbors no actual bias for or against any party to this action. Second, the Court finds no reasonable person, as defined in Clemens, would conclude the Court's prior order demonstrates a bias against Plaintiffs. It is of no moment that the Court relied on the same allegations that the County relied on in determining whether Plaintiffs' allegations bore any likelihood of success on the merits, as it is common for courts and parties to rely on key allegations throughout the course of a given case-especially, as here, where the key allegations form the crux of a complaint. Finally, Plaintiffs have presented no evidence of bias "that stems from an extrajudicial source." That is, Plaintiffs have provided no ...


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