United States District Court, E.D. California
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a civil rights
action pursuant to 42 U.S.C. § 1983. Currently before
the court are plaintiff's motions for extensions of time,
ECF Nos. 55, 59, appointment of counsel, ECF No. 57, recusal
of the undersigned magistrate judge, ECF No. 58, and a court
order, ECF No. 63.
Motions for Extension of Time
has filed a request for an extension of time to file
objections to the September 6, 2019 order denying his various
motions to amend, ECF No. 52. ECF No. 55. Subsequently, he
filed his objections to the order. ECF No. 61. The motion
will be granted and plaintiff's objections under Federal
Rule of Civil Procedure 72(a) will be deemed timely.
has also filed a second request for a thirty-day extension of
time to file an amended complaint. ECF No. 59. In light of
the pending objections to the order dismissing the first
amended complaint with leave to amend, ECF No. 56,
plaintiff's deadline to file an amended complaint will be
vacated and re-set, if necessary, after the District Judge
rules on the objections. The motion for an extension of time
will therefore be denied as moot.
Motion for Appointment of Counsel
has filed another request for the appointment of counsel. ECF
No. 57. The United States Supreme Court has ruled that
district courts lack authority to require counsel to
represent indigent prisoners in § 1983 cases.
Mallard v. United States Dist. Court, 490 U.S. 296,
298 (1989). In certain exceptional circumstances, the
district court may request the voluntary assistance of
counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell
v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood
v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).
determining whether ‘exceptional circumstances'
exist, a court must consider ‘the likelihood of success
on the merits as well as the ability of the [plaintiff] to
articulate his claims pro se in light of the
complexity of the legal issues involved.'”
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)
(quoting Weygandt v. Look, 718 F.2d 952, 954 (9th
Cir. 1983)). The burden of demonstrating exceptional
circumstances is on the plaintiff. Id. Circumstances
common to most prisoners, such as lack of legal education and
limited law library access, do not establish exceptional
circumstances that would warrant a request for voluntary
assistance of counsel.
requests appointment of counsel on the grounds that he is
disabled and bedridden due to a nerve disorder which affects
his vision and ability to write. ECF No. 57. However,
plaintiff has so far demonstrated that he is capable of
filing numerous motions and prosecuting this case without the
assistance of counsel. Furthermore, because the first amended
complaint has been dismissed and there is currently no
complaint pending, the court is unable to assess
plaintiff's likelihood of success on the merits.
Therefore, at this time the court does not find exceptional
circumstances to necessitate the appointment of counsel and
the motion for the appointment of counsel will be denied
Motion for Recusal
has moved for recusal of the undersigned. ECF No. 58. 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. Studley, 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 h[er]self in any proceeding in
which h[er] 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 quotation marks omitted)).
motion for recusal does not set out any reasons for the
recusal, and instead generally refers the court to his
objections to the July 31, 2019 findings and recommendations.
ECF No. 58. The objections specifically address recusal in
only a few instances. ECF No. 56 at 10, 13-14, 16, 19. In
those instances, plaintiff argues that the undersigned should
be disqualified because the screening of the complaint
demonstrates clear prejudice toward plaintiff. Id.
at 10. He further alleges that the undersigned's denial
of counsel, in light of the comments as to the legibility of
plaintiff's handwriting, evidences bias and prejudice.
Id. at 13-14, 16.
the objections broadly, nearly all of plaintiff's
allegations of bias or prejudice are related to the
undersigned's screening of the complaint and denial of
counsel in this action. However, 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)). To the extent plaintiff
bases his motion for recusal on a single comment ...