United States District Court, E.D. California
WELLS PLAINTIFF PRO SE
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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.
Motion for Change of Venue
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)).
venue statute provides that a civil action is properly
(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.
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.
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).
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)).
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.
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.
Second Amended Complaint
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.
second amended complaint alleges that defendants Kendall,
Lord, Robenson, Baughman, Nicolson, Ross, Voong, Abrahms,
Mcguire, and Fuji, as well as five Doe defendants,
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.
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.
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.
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.
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, ¶¶ 77-82. Mcguire then asked ...