United States District Court, N.D. California
ORDER OF DISMISSAL; DENYING MOTION FOR RECUSAL RE:
DKT. NO. 7
TIGAR UNITED STATES DISTRICT JUDGE.
Jerry Wayne Young, is incarcerated at Mule Creek State Prison
following a conviction in the San Diego County Superior
Court. Young commenced this action, while housed at the R.J.
Donovan Correctional Facility, by filing a "writ of
injunction" seeking to prevent his transfer to a
different institution. He has been granted leave to proceed
in forma pauperis by separate order. His complaint is now
before the Court for review under 28 U.S.C. § 1915A.
Standard of Review
federal court must engage in a preliminary screening of any
case in which a prisoner seeks redress from a governmental
entity or officer or employee of a governmental entity. 28
U.S.C. § 1915A(a). In its review the court must identify
any cognizable claims, and dismiss any claims which are
frivolous, malicious, fail to state a claim upon which relief
may be granted, or seek monetary relief from a defendant who
is immune from such relief. 28 U.S.C. § 1915A(b) (1),
(2). Pro se pleadings must be liberally construed.
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990).
Rule of Civil Procedure 8(a)(2) requires only "a short
and plain statement of the claim showing that the pleader is
entitled to relief." "Specific facts are not
necessary; the statement need only ‘give the defendant
fair notice of what the . . . . claim is and the grounds upon
which it rests.'" Erickson v. Pardus, 551
U.S. 89, 93 (2007) (citations omitted). Although in order to
state a claim a complaint "does not need detailed
factual allegations, . . . a plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do. . . . Factual allegations must be enough to
raise a right to relief above the speculative level."
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations omitted). A complaint must proffer
"enough facts to state a claim to relief that is
plausible on its face." Id. at 570.
state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the
Constitution or laws of the United States was violated; and
(2) that the violation was committed by a person acting under
the color of state law. West v. Atkins, 487 U.S. 42,
well-settled that prisoners have no constitutional right to
incarceration in a particular institution. See Olim v.
Wakinekona, 461 U.S. 238, 244-48 (1983); Meachum v.
Fano, 427 U.S. 215, 224 (1976). A prisoner's liberty
interests are sufficiently extinguished by his conviction
that the state may generally confine or transfer him to any
of its institutions, to prisons in another state, or to
federal prisons, without offending the Constitution. See
Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir. 1985)
(citing Meachum, 427 U.S. at 225) (intrastate prison
transfer does not implicate Due Process Clause), and
Olim, 461 U.S. at 244-48 (interstate prison transfer
does not implicate Due Process Clause)). Accordingly, the
instant action will be dismissed for failure to state a
claim. Dismissal is without leave to amend as it appears
amendment would be futile.
Motion for Recusal
has also filed a motion to recuse the undersigned judge on
the grounds of judicial bias. He argues that bias is evident
from the rulings made against him in Young v. Knipp,
C 14-2092 JST (PR) (N.D. Cal.). In that action, plaintiff
filed a petition for a writ of mandamus seeking an order
compelling the state to provide him with a free transcript of
his state criminal proceedings. The Court dismissed the
action with prejudice on the ground that federal courts are
without power to issue mandamus to direct state courts, state
judicial officers, or other state officials in the
performance of their duties. See Demos v. U.S. District
Court, 925 F.2d 1160, 1161-62 (9th Cir. 1991); In re
Campbell, 264 F.3d 730, 731-32 (7th Cir. 2001).
to disqualify, or recuse, a judge fall under two statutory
provisions, 28 U.S.C. § 144 and 28 U.S.C. § 455.
Section 144 provides for recusal where a party files a timely
and sufficient affidavit averring that the judge before whom
the matter is pending has a personal bias or prejudice either
against the party or in favor of an adverse party, and
setting forth the facts and reasons for such belief.
See 28 U.S.C. § 144. Similarly, § 455
requires a judge to disqualify himself "in any
proceeding in which his impartiality might reasonably be
questioned, " 28 U.S.C. § 455(a), including where
the judge "has a personal bias or prejudice concerning a
party, " id. §455 (b)(1).
finding a § 144 motion timely and the affidavits legally
sufficient must proceed no further and another judge must be
assigned to hear the matter. See id.; United
States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980).
Where the affidavit is not legally sufficient, however, the
judge at whom the motion is directed may determine the
matter. See id. at 868 (holding judge challenged
under § 144 properly heard and denied motion where
affidavit not legally sufficient).
substantive test for personal bias or prejudice is identical
under §§ 144 and 455. See Sibla, 624 F.2d
at 867. Specifically, 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)
(citation omitted). Consequently, an affidavit filed under