United States District Court, N.D. California
ORDER DENYING LEAVE TO FILE MOTION FOR
RECONSIDERATION; DENYING MOTION TO DISQULIFY UNDERSIGNED
JUDGE; AND DIRECTING PLAINTIFF TO RESPOND TO ORDER TO SHOW
Gonzalez Rogers United States District Judge.
a state prisoner proceeding pro se, filed a civil
rights complaint pursuant to 42 U.S.C. § 1983. On
November 13, 2018, the Court reviewed Plaintiff's
complaint and ordered him to show cause why this action
should not be dismissed without prejudice for failure to
exhaust administrative remedies. Dkt. 6. The Court stated as
Plaintiff has indicated that, at the time he filed his
complaint, the response to his appeal [at] the third formal
level was “never returned back to [him].” Dkt. 1
at 2. It appears that his claims were
unexhausted at the time he filed this action. Thus, it is
unlikely that Plaintiff can proceed with this action because
failed to fully exhaust his claims prior to filing this
action. Nor can Plaintiff proceed with this case if he
exhausts his claim after the filing of this action.
Furthermore, Plaintiff has not presented any extraordinary
circumstances which might compel that he be excused from
complying with PLRA's exhaustion requirement. Cf.
Booth[ v. Churner], 532 U.S. [731, ] 741 n.6 [(2001)]
(courts should not read “futility or other
exceptions” into section 1997e(a)).
Id. at 1-2 (footnote in original and brackets
added). The Court further directed Plaintiff to respond to
the Order to Show Cause, stating as follows:
. . . Plaintiff will be provided an opportunity to
demonstrate that he has properly exhausted his claims rather
than have the Court allow this case to proceed and Plaintiff
perhaps miss his opportunity to properly exhaust and pursue
this action. Plaintiff shall show cause within twenty-eight
(28) days why this case should not be dismissed without
prejudice for failure to exhaust. Specifically, to avoid
dismissal, Plaintiff needs to provide proof that
extraordinary circumstances existed in order to excuse him
from complying with PLRA's exhaustion requirement.
See e.g., . Ross[ v. Blake], [ U.S., ] 136
S.Ct. [1850, ] 1856-58 [(2016)].
Id. at 2 (brackets added).
response to the Court's Order was due on December 11,
2018. That deadline has passed, and Plaintiff has not filed a
response. Instead, Plaintiff is seeking reconsideration of
the Court's November 13, 2018 Order. See Dkt. 7.
In Plaintiff's motion entitled, “Motion for
Reconsideration After Motion for Disqualification of Judge,
” he challenges the Court's decision to issue an
Order to Show Cause instead of issuing a dismissal with leave
to amend. Id. at 1. Plaintiff claims that he
“could prove [he] exhausted [his] administrative
remedies.” Id. However, he does not support
this statement with any further explanation. See id.
Northern District of California, no motion for
reconsideration may be brought without leave of court.
See Civil L.R. 7-9(a). Under Civil Local Rule 7-9,
the moving party must specifically show: (1) that at the time
of the motion for leave, a material difference in fact or law
exists from that which was presented to the court before
entry of the interlocutory order for which the
reconsideration is sought, and that in the exercise of
reasonable diligence the party applying for reconsideration
did not know such fact or law at the time of the
interlocutory order; or (2) the emergence of new material
facts or a change of law occurring after the time of such
order; or (3) a manifest failure by the court to consider
material facts which were presented to the court before such
interlocutory order. See Civil L.R. 7-9(b).
outset, the Court notes that Plaintiff, by failing to seek
leave of court before filing his motion for reconsideration,
has not complied with the Local Rules of this district, and,
on that basis alone, the motion (dkt. 7) is DENIED. See
Tri-Valley CARES v. U.S. Dept. of Energy, 671 F.3d 1113,
1131 (9th Cir. 2012) (“Denial of a motion as the result
of a failure to comply with local rules is well within a
district court's discretion.”). The fact that
Plaintiff is proceeding pro se does not excuse his
non-compliance with the procedural rules of this Court.
See Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir.
even if the Court construes Plaintiff's motion as one
seeking leave to file a motion for reconsideration, his
motion fails to make the showing required under Civil Local
Rule 7-9 or otherwise to show good cause for reconsideration.
Furthermore, it seems that Plaintiff merely disagrees with
the Court's decision to issue the November 13, 2018 Order
to Show Cause, which is not a reason to warrant
reconsideration. While Plaintiff claims in a conclusory
manner that he “could prove with one hundred percent
sureness and effectiveness that [he] exhausted his
administrative remedies, ” dkt. 7 at 1, he has not
specifically elaborated on whether he can show that he
exhausted his administrative remedies prior to
filing his complaint, see 42 U.S.C. § 1997e(a)
(prisoner must exhaust his administrative remedies for
constitutional claims prior to asserting them in civil rights
complaint). As such, even if Plaintiff's aforementioned
statement means that he exhausted his claims after
bringing it before the Court, his subsequent exhaustion
cannot excuse his earlier failure to exhaust. Vaden v.
Summerhill, 449 F.3d 1047, 1051 (9th Cir. 2006)
(“[A prisoner] may initiate litigation in federal court
only after the administrative process ends and leaves his
grievances unredressed. It would be inconsistent with the
objectives of the statute to let him submit his complaint any
earlier than that.”) When the district court concludes
that the prisoner has not exhausted administrative remedies
on a claim, “the proper remedy is dismissal of the
claim without prejudice.” Wyatt v. Terhune,
315 F.3d, 1108, 1120 (9th Cir. 2003) overruled on other
grounds by Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir.
2014) (en banc). In the instant action, the Court determined
that Plaintiff had not exhausted his administrative remedies
on his claims because he had indicated that, at the time he
filed his complaint, the response to his appeal at the third
formal level was “never returned back to [him].”
Dkt. 1 at 2. Instead of dismissing Plaintiff's complaint,
the Court allowed Plaintiff to have an opportunity to show
that he exhausted his administrative remedies prior
to filing suit, which he has still not done and thus
this action could be dismissed without prejudice.
Plaintiff has not articulated any substantive reason why the
Court should reconsider its November 13, 2018 Order to Show
Cause. Accordingly, Plaintiff's request to file the
above-referenced motion for reconsideration (dkt. 7) is
hereby DENIED for the reason that Plaintiff fails to identify
a cognizable basis for reconsideration. See Civil
L.R. 7-9(b). At this time, and again in lieu of dismissing
this action for failure to exhaust administrative remedies,
Plaintiff will be provided one
final opportunity to show cause
within twenty-eight (28) days, why this case
should not be dismissed without prejudice for failure to
exhaust, as directed below.
it seems that the title of the instant motion also indicates
that Plaintiff requests to disqualify the undersigned judge.
Dkt. 7. However, other than Plaintiff's disagreement with
the Court's decision to issue an Order to Show Cause
instead of an Order of Dismissal With Leave to Amend,
Plaintiff presents no other reason as to why disqualification
is the process by which a federal judge may be disqualified
from a given case. Motions to recuse a district judge are
governed by two statutes, 28 U.S.C. § 144 and §
455. Section 144 provides for recusal of the judge before
whom a matter is pending upon the filing by a party of a
“sufficient affidavit that the judge . . . has a
personal bias or prejudice either against him or in favor of
any adverse party.” Section 455 also provides grounds
for disqualification, and requires a judge to disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned. See 28 U.S.C. §
455(a). As a federal judge is presumed to be impartial, a
substantial burden is imposed on the party claiming bias or
prejudice to show that this is not the case. See United
States v. Zagari, 419 F.Supp. 494, 506 n.30 (N.D. Cal.
Plaintiff's recusal request does not meet the legal
sufficiency requirement of section 144. Even if
Plaintiff's aforementioned allegations could be construed
as those of bias, such allegations are conclusory and do not
allege an extrajudicial basis for the alleged bias or
prejudice. See United States v. $292, 888.04 in U.S.
Currency, 54 F.3d 564, 566-67 (9th Cir. 1995) (affidavit
inadequate when based on conclusory allegations of bias);
Toth v. Trans World Airlines, Inc., 862 F.2d 1381,
1387-88 (9th Cir. 1988) (district judge correctly rejected
disqualification motion as legally insufficient and had no
duty to refer it to another judge because the alleged bias or
prejudice did not arise from an extrajudicial source). For
similar reasons, the motion is insufficient to show bias
under section 455. It is well-established that actions taken
by a judge during the normal course of proceedings are not
proper grounds for disqualification. See United States v.
Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (judge
properly denied motion for disqualification based on his
prior service as prosecutor and his actions ...