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Wells v. Kendall

United States District Court, E.D. California

July 8, 2019

ANDRE WELLS, Plaintiff,
v.
R. KENDALL, et al, Defendants.

          ANDRE WELLS PLAINTIFF PRO SE

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and state law. By order filed April 24, 2019, the undersigned screened the first amended complaint and gave plaintiff the option of either proceeding on the complaint as screened or filing an amended complaint. ECF No. 21. Plaintiff chose to amend the complaint and has now filed a second amended complaint. ECF No. 30. He has also moved for change of venue. ECF No. 29.

         I. Motion for Change of Venue

         Plaintiff has filed a motion for change of venue, seeking transfer to the United States Court for the Northern District of California on the ground that the undersigned is biased against him. ECF No. 29. To the extent plaintiff indicates that this motion is an appeal of the April 24, 2019 screening order which dismissed portions of the complaint with leave to amend, that order is not a final, appealable order and this court is therefore not divested of jurisdiction. Indian Oasis-Baboquivari Unified Sch. Dist. No. 40 v. Kirk, 109 F.3d 634, 636 (9th Cir. 1997) ("[A]n order dismissing a complaint with leave to amend is not a final, appealable order."); Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007) ("When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply." (citation omitted)).

         The venue statute provides that a civil action is properly brought in

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

28U.S.C. § 1391.

         "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a). In this case, it appears that all defendants are located, and the incidents giving rise to the claims occurred, in the Eastern District of California. ECF No. 30. Accordingly, it appears that venue is proper in the Eastern District and plaintiff has not raised any grounds on which venue would be proper in the Northern District. Furthermore, even if plaintiff could establish judicial bias, the bias of a single judge within the district would not merit transfer.

         To the extent plaintiff's motion can be construed as a motion to disqualify the undersigned, said motion is properly before the undersigned, as the Ninth Circuit has "held repeatedly that the challenged judge h[er]self should rule on the legal sufficiency of a recusal motion in the first instance." United States v. Studlev. 783 F.2d 934, 940 (9th Cir. 1986) (citing United States v. Azhocar. 581 F.2d 735, 738 (9th Cir. 1978)). If the affidavit is legally insufficient, then recusal can be denied. United States v. $292, 888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995).

         "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." 28 U.S.C. § 144. "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Under both recusal statutes, the substantive standard is "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Studley, 783 F.2d at 939 (quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (internal quotations omitted)).

         In this case, plaintiff bases his claims of bias on the delay in screening his complaint, the screening of the complaint, and the fact that the court has not granted his request for an order directing the California Department of Corrections and Rehabilitation (CDCR) to preserve a recorded phone call. ECF No. 29. Contrary to plaintiffs assertions, the delay in screening his complaint was not due to any bias against him. While the court understands plaintiffs frustration at how long it can take to resolve matters, these delays are not attributable to any malicious intent toward him, but rather to the fact that the Eastern District of California maintains one of the heaviest caseloads in the nation, a significant portion of which is comprised of pro se inmate cases. This sometimes causes unavoidable delays in the resolution of individual matters. To the extent plaintiffs claims of bias and obstruction arise out of the undersigned's rulings in this case, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States. 510 U.S. 540, 555 (1994). Recusal "is required 'only if the bias or prejudice stems from an extrajudicial source and not from conduct or rulings made during the course of the proceeding.'" Pau v. Yosemite Park & Curry Co.. 928 F.2d 880, 885 (9th Cir. 1991) (quoting Toth v. TransWorld Airlines. 862 F.2d 1381, 1388 (9th Cir. 1988)).

         Accordingly, plaintiffs motion for transfer of venue or recusal is denied. To the extent the motion also seeks an order directing the CDCR to preserve the recording of his phone conversation, the request will also be denied. The incident that gives rise to plaintiff's claims took place on January 1, 2017, and plaintiff alleges that the retention period for the recording at issue is three years. ECF No. 29. This means that approximately six months remain before the recording is subject to being destroyed. Furthermore, "[i]t is well established that the 'duty to preserve arises when a party knows or should know that certain evidence is relevant to pending or future litigation.'" Surowiec v. Capital Title Agency, Inc., 790 F.Supp.2d 997, 1005 (D. Ariz. 2011) (citation omitted). Plaintiff has provided no facts demonstrating that the recording will be destroyed prior to the expiration of the retention period, that he is incapable of notifying the CDCR of the pending litigation and therefore putting it on notice of its duty to preserve the evidence, or that the CDCR will disregard its duty to preserve evidence once it becomes aware of that duty. Accordingly, the request for a court order will be denied.

         II. Second Amended Complaint

         The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § l9l5A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are "frivolous, malicious, or fail[] to state a claim upon which relief may be granted," or that "seek[] monetary relief from a defendant who is immune from such relief." 28 U.S.C. § l9l5A(b).

         The second amended complaint alleges that defendants Kendall, Lord, Robenson, Baughman, Nicolson, Ross, Voong, Abrahms, Mcguire, and Fuji, as well as five Doe defendants, [1]violated plaintiff's First, Eighth, and Fourteenth Amendment rights; the Civil Rights of Institutionalized Persons Act; the Unruh Civil Rights Act; and state tort law. ECF No. 30 at 1-16.

         Plaintiff alleges that on January 1, 2017, he was on the phone with his foster mother when he received news that his brother had passed away. Id. at 4, ¶ 15-16, 18. Almost immediately after receiving this news, while plaintiff was still visibly upset and crying, defendant Kendall told him to get off the phone. Id., ¶ 19. When plaintiff said that he had just found out his brother had died, Kendall told him he did not care and to get off the phone. Id., ¶¶ 20-21. Kendall then told plaintiff twice more, in rapid succession, to get off the phone. Id. at 5, ¶ 24. Plaintiff responded by telling him to hold on and turned away. Id., ¶ 25. Then, without warning, Kendall "slammed" plaintiff into the concrete floor. Id., ¶ 27. While Kendall had plaintiff face down, he put his knee in plaintiffs back while bending back his right arm. Id., ¶ 28. Plaintiff started asking Kendall why he "slammed" him, and as other officers started responding Kendall tried to make it look like plaintiff was attempting to bite him. Id., ¶¶ 29-32. Plaintiff was then escorted to the sally port where he made a complaint of excessive use of force and an excessive force video was made. Id. at 6, ¶¶ 36-37. While in the sally port, plaintiff's restraints were so tight that they cut off circulation to his hands, which he complained about to defendant Nicolson. Id., ¶¶ 38-39. Nicolson and Ross, who was the acting supervisor, refused to report illegal activity despite being mandated to do so. Li at 6, 16, ¶¶ 39-40, 112. When he told defendant Lord that his cuffs were too tight, Lord told him that he "shouldn't have got in them." Li at 6, ¶¶ 41-42.

         Plaintiff was eventually released back to the yard, but Doe defendants 1 and 2, who were "responsible for the lock up orders needed to place a[n] inmate in segragation [sic]," took some unspecified action that caused plaintiff to be called back to the sally port the next day. Id. at 2, 7, 15 ¶¶ 4-5, 44, 52, 108. Plaintiff was held in the sally port for approximately seven hours in the freezing rain while once again handcuffed too tightly. Id. at 7-8, ¶¶ 53-55. During that time, defendant Lord refused to let him use the restroom or to give him food or water. Id. at 8, ¶ 57. As a result of the conditions and the recent death of his brother, plaintiff began to feel suicidal and was taken to a crisis bed. Id., ¶¶ 58-59. On January 3, 2017, while in the crisis bed, plaintiff called "man down" for help with his back spasms for forty-five minutes without assistance and was told by defendants Robenson and Jane Doe that there was no man down in a medical facility. Id., ¶¶ 61-62. He asserts that Robenson and Jane Doe conspired to deny him medical care. Id. at 15, ¶ HO. On January 6, 2017, after six hours of laying on the ground and hitting the door asking for assistance, defendant Jane Doe put him in a gurney and he was given a Haldol shot by an unknown nurse. Id. at 8-9, ¶¶ 62, 64-66.

         On January 8, 2017, plaintiff had a hearing on his alleged attempted assault on defendant Kendall before defendant John Doe 3, who refused to call any of plaintiff's witnesses. Id. at 12, ¶¶ 90-94. Plaintiff was found guilty and lost 190 days of credit. LL, ¶ 95. He appealed the disciplinary violation and his appeal was denied by defendant John Doe 4. Li at 13, ¶¶ 97-98.

         After plaintiff was returned to the yard, defendants Kendall, Abrahms, and Mcguire retaliated against him. Id. at 9, ¶ 70. Abrahms, who is friends with Kendall, denied plaintiff his day room access, showers, and the ability to go to his treatment group. Id. at 10, ¶ 71. Kendall inappropriately confiscated his property for a disciplinary issue and threw plaintiffs food in the garbage. Id., ¶¶ 72-73. Then, on June 24, 2017, Kendall escorted him to a disciplinary hearing where defendant Mcguire acted as the hearing officer and issued an excessive punishment after finding him guilty. Id. at 10-11, ΒΆΒΆ 77-82. Mcguire then asked ...


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