United States District Court, E.D. California
ORDER DENYING PLAINTIFFS’S MOTION FOR
RECONSIDERATION AND MOTION TO DISQUALIFY (Doc. Nos. 9 and
Seavon Pierce, a state prisoner proceeding pro se,
filed this civil rights action in the U.S. District Court for
the Northern District of California on March 22, 2016. (Doc.
No. 1.) The action was transferred to this court on April 6,
2016. (Doc. No. 4.) On May 4, 2016, the court denied
plaintiff’ application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915(g). (Doc. No.
7.) The action was therefore dismissed without prejudice to
refiling accompanied by the filing fee. (Id. at
2-3.) On May 23, 2016, plaintiff submitted two filings-a
motion for reconsideration of the order dismissing this
action without prejudice and a motion to disqualify the
magistrate judge and district judge assigned to this case.
(Doc. Nos. 9 and 10.) For the reasons that follow, both
motions are denied.
Motion for Reconsideration
motion for reconsideration should not be granted, absent
highly unusual circumstances, unless the district court is
presented with newly discovered evidence, committed clear
error, or if there is an intervening change in the
controlling law.” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir.
2009) (internal quotations marks and citations omitted).
“A party seeking reconsideration must show more than a
disagreement with the Court’s decision, and
recapitulation” of that which was already considered by
the court in rendering its decision. U.S. v. Westlands
Water Dist., 134 F.Supp.2d 1111, 1131 (E.D. Cal. 2001).
To succeed, a party must set forth facts or law of a strongly
convincing nature to induce the court to reverse its prior
decision. See Kern-Tulare Water Dist. v. City of
Bakersfield, 634 F.Supp. 656, 665 (E.D. Cal. 1986),
aff’d in part and rev’d in part on other
grounds, 828 F.2d 514 (9th Cir. 1987).
pursuant to this court’s Local Rules, when filing a
motion for reconsideration, a party must show what “new
or different facts or circumstances claimed to exist which
did not exist or were not shown upon such prior motion, or
what other grounds exist for the motion.” Local Rule
motion for reconsideration, plaintiff appears to disagree
with the court’s classification of this action as a
civil rights complaint. (Doc. No. 9.) He contends that
instead of a civil rights action, he filed a “statutory
action permitted by statutory law” under the False
Claims Act. Plaintiff accuses the court of fraud and suggests
that 28 U.S.C § 1915(g) does not apply. Plaintiff’s
arguments in this regard do not present grounds for
reconsideration. First, § 1915(g) by its terms applies
to all civil actions including appeals of a judgment in a
civil action and is not limited to actions concerning
conditions of confinement, meaning that it is applicable
regardless of how plaintiff characterizes the nature of his
action. Second, as has been explained to plaintiff by other
courts, “the Ninth Circuit has repeatedly held that pro
se plaintiffs are prohibiting from pursuing claims on behalf
of others, and specifically may not prosecute False Claims
qui tam actions on behalf of the United States without
retaining licensed counsel.” Pierce v. Cal.
Dep’t of Corr., No. 1:15-cv-00482 BAM PC, 2015 WL
6081905, at *1 (E.D. Cal. Oct. 13, 2015) (citing Simon v.
Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir.
2008). Therefore, as a party proceeding pro se,
plaintiff cannot bring any False Claims actions on behalf of
the United States as he has attempted to do here.
Motion for Disqualification
28 U.S.C. § 144, “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.” 28 U.S.C. § 144. See Pesnell
v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008).
28 U.S.C. § 455(a), “[a]ny ... judge ... shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.”
Pesnell, 543 F.3d at 1043. 28 U.S.C. § 455(b)
provides in relevant part, “[h]e shall also disqualify
himself in the following circumstances: [w]here he has a
personal bias or prejudice concerning a party . . .” 28
U.S.C. § 455(b)(1).
both recusal statutes, the substantive standard is
“[W]hether a reasonable person with knowledge of all
the facts would conclude that the judge’s impartiality
might reasonably be questioned.” Pesnell, 543
F.3d at 1043 (citing United States v. Hernandez, 109
F.3d 1450, 1453 (9th Cir. 1997). However, the bias must arise
from an extrajudicial source and cannot be based solely on
information gained in the course of the proceedings.
Id. (citing Liteky v. United States, 510
U.S. 540, 554-56 (1994). “Judicial rulings alone almost
never constitute a valid basis for a bias or partiality
motion.” In re Focus Media, Inc., 378 F.3d
916, 930 (9th Cir. 2004) (quoting Liteky, 510 U.S.
plaintiff’s motion for disqualification is apparently
based on his belief that the assigned judges have wrongfully
prohibited him from proceeding on behalf of the United States
in this action. (Doc. No. 10.) Not only is plaintiff
incorrect, for the reasons discussed above, but he has failed
to present any facts to suggest impartiality or bias
on the part of the assigned judges outside of this
court’s legal rulings.
reasons set forth above, plaintiffs motion for
reconsideration (Doc. No. 9) and motion for disqualification
(Doc. No. 10) are denied.