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Mendia v. Garcia

United States District Court, N.D. California

April 27, 2017

BERNARDO MENDIA, Plaintiff,
v.
JOHN M. GAR et al., Defendants.

          ORDER RE: MOTION TO DISQUALIFY JUDGE RE: DKT. NO. 223

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         Plaintiff Bernardo Mendia moves to disqualify this Court from presiding over this action. Mot., Dkt. No. 223. Defendants John Garcia, Ching Chang, and the United States of America (collectively, “Defendants”) filed an Opposition (Dkt. No. 233) and Plaintiff filed a Reply (Dkt. No. 237). This matter came before the Court on April 27, 2017. Having considered the parties' arguments, the record in this case, and the relevant legal authority, the Court DENIES Plaintiff's Motion.

         BACKGROUND

         This action arises out of allegedly unlawful immigration detainers that Garcia and Chang (together, the “Federal Defendants”), both U.S. Immigration and Customs Enforcement (“ICE”) agents, placed on Plaintiff in 2007 while he was in pretrial detention. Plaintiff, proceeding pro se, initiated this action in 2010. See Compl., Dkt. No 1. He filed his First Amended Complaint (“FAC”) on August 11, 2011. Dkt. No. 28.

         On March 20, 2012, the Court dismissed the FAC on the ground that Plaintiff lacked Article III standing. Dkt. No. 51. Plaintiff appealed (Dkt. No. 52), and on April 8, 2014, the Ninth Circuit reversed, holding Plaintiff could show that Defendants caused his injury and thus had standing to sue. See Mendia v. Garcia, 768 F.3d 1009 (9th Cir. 2014).

         On December 17, 2014, the Court granted Plaintiff 90 days to obtain counsel and seek leave to file a second amended complaint (“SAC”). Dkt. No. 63. Plaintiff did not retain counsel, but timely sought leave to amend on March 10, 2015 (Dkt. No. 64) and filed his SAC on April 1, 2015 (Dkt. No. 68). Defendants moved to dismiss the SAC. Dkt. Nos. 87, 90. Plaintiff subsequently obtained pro bono counsel (Dkt. No. 93; see Dkt. No. 101 at 1) and filed Oppositions to both Motions to Dismiss (Dkt. Nos. 96, 98). Thereafter, the parties notified the Court that Plaintiff intended to seek leave to file a third amended complaint (“TAC”) and stipulated to suspend the briefing deadlines related to the Motions to Dismiss pending the Court's ruling on Plaintiffs anticipated motion for leave to file a TAC. Dkt. Nos. 99-100.

         On February 26, 2016, the Court granted in part and denied in part Plaintiffs Motion for Leave to File a TAC. Dkt. No. 107. The Court permitted Plaintiff to amend the SAC to assert (1) Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., claims against the United States for intentional infliction of emotional distress, false imprisonment, and negligence; and (2) Bivens[1]claims against the Federal Defendants for violations of Plaintiff s First Amendment right to free speech, Fourth Amendment right against unreasonable seizure, and Fifth Amendment right to equal protection. Id. at 10-31. The Court found the Federal Defendants were not entitled to qualified immunity at that time. Id. at 26-31. The Court did not permit amendment as to Plaintiffs proposed (1) Fifth Amendment self-incrimination and substantive due process claims, (2) Eighth Amendment excessive bail claim against the Federal Defendants, (2) declaratory relief claims, and (3) claims against ICE Field Office Director Timothy Aitken. Id. at 31-42. On April 22, 2016, the Federal Defendants appealed that Order. Dkt. No. 134.

         On May 10, 2016, the Court denied the Federal Defendants' Motion to Dismiss the TAC. Dkt. No. 138. Among other things, the Court again found the Federal Defendants were not entitled to qualified immunity. Id. at 8-19. The Federal Defendants appealed this Order as well. Dkt. No. 146.

         On June 14, 2016, the Court “partially stay[ed] discovery against [the Federal] Defendants as to the Bivens claims but allow[ed] discovery against them restricted to their roles as witnesses in the FTCA claims against the United States.” Dkt. No. 143 at 10. The parties engaged in discovery thereafter and participated in a settlement conference.

         Plaintiffs counsel withdrew from representation on August 25, 2016. Dkt. No. 170. Consequently, the Court stayed all proceedings, vacated all deadlines, and referred Plaintiff to the San Francisco Federal Pro Bono Project to attempt to find an attorney to represent Plaintiff in settlement proceedings. Dkt. No. 171. The Pro Bono Project was unable to find new counsel for Plaintiff. See Dkt. No. 173. On October 31, 2016, the Court determined “the matter must proceed with Plaintiff representing himself pro se for the time being.” Id. It lifted the stay, scheduled a case management conference (“CMC”), and ordered the parties to meet and confer and file a joint CMC statement no later than one week prior to the conference. Id.

         The parties filed separate CMC statements. Dkt. Nos. 175 (Defs.' Statement), 177 (Pl.'s Statement). Defendants represented that “since November 18, 2016, Defendants' counsel ha[d] repeatedly (and unsuccessfully) tried to seek Plaintiffs compliance with the Court's October 31, 2016, order” but that “[a]s of filing, Defendants' counsel ha[d] heard nothing more from Plaintiff about the Amended Case Management Statement, as well as other discovery-related matters.” Defs.' Statement at 2 n.1. Defendants also noted several discovery concerns, including (1) Plaintiffs failure to engage in discovery discussions; (2) Plaintiffs failure to comply with his discovery obligations under Federal Rule of Civil Procedure 26(a)(1)(A)(iii); (3) Plaintiffs unauthorized disclosure of documents covered by the parties' protective order; and (4) difficulties with holding in-person meet and confer sessions, as Plaintiff had moved to Mexico. Id. at 7-13; see Pl.'s Statement at 1 (“Plaintiff is domiciled in Mexico City.”). In his statement, Plaintiff indicated he was in the process of obtaining counsel and requested a sixty-day continuance of the CMC to allow him to do so. Pl.'s Statement at 6-8.

         The Court held the CMC on December 22, 2016. Attorney H. Nelson Meeks appeared on Plaintiffs behalf for the limited purpose of representing Plaintiff at the CMC. Dkt. No. 183; see Dkt. No. 178. At the conference, the Court ordered Plaintiff to, among other things, recall any documents covered by the protective order that he had disclosed to third parties. Dkt. No. 182 ¶ 2. The Court also set a further CMC for February 23, 2017 to give Plaintiff additional time to obtain counsel. Id. ¶ 4.

         On February 16, 2017, Plaintiff filed a status report describing his unsuccessful search for counsel. Dkt. No. 190. Plaintiff also filed a Motion to Stay the proceedings pending resolution of the Federal Defendants' appeals. Dkt. No. 189.

         The Court held a further CMC on February 23, 2017, at which Plaintiff appeared. The Court ordered, inter alia, Plaintiff to request his file from his former counsel and produce to Defendants documents pertaining to the computation of his damages. Dkt. No. 194 ¶¶ 1-2. The Court stated it would hold a hearing on Plaintiffs Motion to ...


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