Unpublished Disposition, 940 F.2d 667 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 940 F.2d 667 (9th Cir. 1991)

Demola ADESANYA, Plaintiff-Appellant,v.WEST AMERICA BANK, Defendant-Appellee.

No. 90-15439.

United States Court of Appeals, Ninth Circuit.

Submitted July 23, 1991.* Decided July 26, 1991.

Before PREGERSON, D.W. NELSON and REINHARDT, Circuit Judges.


MEMORANDUM** 

Demola Adesanya appeals pro se the district court's dismissal with prejudice of his action against West America Bank ("Bank") as a sanction for failure to comply with court orders and for filing numerous frivolous motions. In addition, the court entered a pre-filing order against Adesanya. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm in part, reverse in part and remand.

Adesanya filed his complaint against the Bank alleging that the Bank failed to comply with the Equal Credit Opportunity Act, 15 U.S.C. § 1601 et seq., and regulations issued pursuant to it regarding record retention. Adesanya sought to proceed in forma pauperis ("IFP") and submitted his forma pauperis declaration pursuant to 28 U.S.C. § 1915(a). The district court never ruled on his IFP request. Adesanya and the Bank then each filed a series of motions and oppositions.1  The court issued an order to show cause why Adesanya's action should not be dismissed with prejudice as a sanction for filing frivolous motions, for failing to serve the Bank's attorney with motions and with amended complaints, and for contacting the Bank directly rather than through their attorney. After Adesanya responded with two more motions, which the court found to be meritless, the court dismissed Adesanya's action with prejudice.

* Failure to Rule on IFP Request

Under 28 U.S.C. § 1915(a), a district court may grant IFP status if a litigant is unable to pay the costs of the suit. A litigant who is granted IFP status is entitled to issuance and service of process. Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). The district court may, however, deny leave to proceed IFP and dismiss the complaint before service of process if the complaint is frivolous. Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1369 (9th Cir. 1987). A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989).

Here, the district court never ruled on Adesanya's IFP application. The court should have made a finding as to indigency and, if it found Adesanya was indigent, should have directed issuance and service of process unless the complaint was frivolous. See Jackson, 885 F.2d at 640. Here, the district court specifically noted that Adesanya was indigent when it denied the Bank's request for sanctions. Further, our review of the record shows that Adesanya's complaint did have an arguable basis in law and fact and thus was not frivolous. See Neitzke, 109 S. Ct. at 1831. Thus, Adesanya is entitled to issuance and service of process.

II

Dismissal

District courts have "inherent power" to control their dockets. Hamilton Copper & Steel Corp. v. Primary Steel, 898 F.2d 1428, 1429 (9th Cir. 1990). "In the exercise of that power they may impose sanctions including, where appropriate, ... dismissal of a case." Id. (citation omitted). Dismissal, however, is a harsh remedy and should only be imposed in "extreme circumstances." Id.

We review a dismissal of an action as a sanction for abuse of discretion. Witt v. United States, 681 F.2d 1144, 1149 (9th Cir. 1982). We will overturn a dismissal sanction only if we have a definite and firm conviction that it was clearly outside the acceptable range of sanctions. Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987).

Here, the district court dismissed the action as a sanction against Adesanya for filing excessive frivolous motions and for failing to properly serve defendants with motions and amended complaints. Several of Adesanya's motions, however, specifically requested that the court rule on IFP status and issue summons. Further, if the court had granted IFP status, Adesanya would have been entitled to service of process. Given the court's failure to rule on the IFP request, it is understandable that Adesanya was confused as to whether he should serve the Bank or its counsel, or whether it was his responsibility to serve the defendants. Thus, although some of Adesanya's motions were patently frivolous,2  the district court clearly abused its discretion when it dismissed this action as a sanction before ruling on Adesanya's IFP request.

III

Pre-Filing Order

Because we reverse the dismissal of Adesanya's action and remand for issuance and service of process, there is no basis for the pre-filing order. Accordingly, we vacate the pre-filing order.

IV

Recusal Motion

Finally, Adesanya appeals the district court's denial of his motion to recuse Judge Smith. We review the denial of a recusal motion for abuse of discretion. Sewer Alert Comm. v. Pierce County, 791 F.2d 796, 798 (9th Cir. 1986). A motion for recusal of a judge will be granted only upon a showing of bias or prejudice from an extrajudicial source. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988).

Here, Adesanya failed to present any extrajudicial evidence of bias in his motion before the district court. Adesanya raises the issue of an extrajudicial source of bias for the first time in his brief on appeal. Absent exceptional circumstances, this court will not consider issues raised for the first time on appeal. United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). We find no exceptional circumstances here. Accordingly, the district court correctly denied the recusal motion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3. Accordingly, Adesanya's request for oral argument is denied

 1

It is not clear from the record whether the Bank was ever served. However, the Bank voluntarily appeared to file its motions and oppositions

 2

Adesanya, plaintiff below, filed motions to remove three state court actions to district court and to consolidate all four actions. These motions were patently frivolous because only a defendant can seek removal

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