Lamon v. Director, California Department of Corrections et al
Filing
260
ORDER signed by Judge Kimberly J. Mueller on 11/8/11 ORDERING that Plaintiff's Motion for disqualification 247 and Motion for Reconsideration of an earlier deniel of disqualification 239 are DENIED. Plaintiff's Motion for a Temporary Restraining Order 257 is Striken. The Court will consider the Motion for the appointment of experts 254 at the Trial Confirmation hearing. (Mena-Sanchez, L)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BARRY LOUIS LAMON,
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Plaintiff,
Civ. No. S-06-0156 KJM CKD P
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vs.
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DIRECTOR, CALIFORNIA
DEPARTMENT OF CORRECTIONS
AND REHABILITATION, et al.,
ORDER
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Defendants.
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Plaintiff is a state prison inmate proceeding pro se with a civil rights action under
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42 U.S.C. § 1983. He has filed a motion to disqualify the undersigned, a motion for a temporary
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restraining order, and a motion for the appointment of expert witnesses.
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I. Motion To Disqualify And Motion To Reconsider (ECF Nos. 239 & 247)
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Plaintiff has filed a motion to disqualify the undersigned under 28 U.S.C.
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§ 455(b)(1) and a motion for reconsideration of an earlier order denying plaintiff’s request that
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the undersigned recuse herself. He says he has filed a motion to reconsider an order adopting
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findings and recommendations that the undersigned issued as a magistrate judge and argues that
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the undersigned has issued orders that conflict with the Federal Rules of Civil Procedure and
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established federal practice, to defendants’ benefit. He notes he has asked the Chief Judge of
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this district to investigate his allegations.
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Under 28 U.S.C. § 455(a), a judge must disqualify herself if her impartiality
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might reasonably be questioned; under 28 U.S.C. § 455(b)(1), disqualification is appropriate if
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the judge has a personal bias or prejudice against a party. The judge whom a party seeks to
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disqualify rules on the request. Bernard v. Coyne (In re Bernard), 31 F.3d 842, 843 (9th Cir.
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1994).
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Plaintiff bases his claim on several rulings issued by the undersigned while she
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was a magistrate judge. However, “[j]udicial rulings alone almost never constitute a valid basis
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for a bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). While rulings
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may be proper grounds for appeal, they are an insufficient basis for recusal unless, “in the rarest
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circumstances [they] evidence the degree of favoritism or antagonism required. . . .” Id.
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A judge’s opinions, formed during the course of the proceedings, similarly rarely
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show deep seated antagonism or favoritism, even if those remarks are “critical or disapproving
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of, or even hostile to, . . . the parties, or their cases.” Id.
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To the extent plaintiff seeks disqualification of the undersigned based on rulings,
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he has not demonstrated that those rulings show deep-seated antagonism or favoritism or
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otherwise shown that this court will be unable to rule fairly on any issues remaining in the case.
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Moreover, the undersigned is unaware of any reason she cannot continue to be impartial in
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exercising her duties relating to this case. See United States v. Holland, 519 F.3d 909, 915 (9th
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Cir. 2009).
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To the extent plaintiff suggests recusal is necessary because he is seeking
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reconsideration of the findings and recommendations the undersigned issued, the court notes that
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plaintiff’s challenge to the findings and recommendations granting in part and denying in part
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defendants’ motion for summary judgment has been stricken. ECF No. 250. Even if the
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challenge had not been stricken, however, plaintiff’s request for reconsideration would not be a
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sufficient basis for recusal. See Dawson v. Marshall, 561 F.3d 930, 933-34 (9th Cir. 2009).
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Finally, to the extent plaintiff suggests that his request for an investigation is a
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ground for disqualification, he is mistaken. M&I Marshall & Ilsley Bank v. McGill, 2011 WL
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2652569, at *1 (D. Ariz. June 30, 2011) (citing In re Mann, 229 F.3d 657, 658-59 (7th Cir. 2000)
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(judicial complaint is not sufficient basis for disqualification because of possibility of
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manipulation)).
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II. Motion For A Temporary Restraining Order (ECF No. 257)
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Plaintiff’s motion for a temporary restraining order exceeds the twenty-five page
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limitation imposed on plaintiff’s filings. (ECF No. 134). It is stricken.
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III. Motion For The Appointment Of Expert Witnesses (ECF No. 254)
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Plaintiff seeks the appointment of expert witnesses in the fields of psychiatry, use
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of pepper-spray, and photography. He cites to Rules 702 and 706(a) of the Federal Rules of
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Evidence, but asks for experts to “testify on my behalf at trial.” ECF No. 254 at 2.
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To the extent plaintiff seeks the appointment of his own experts, the request is
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denied. The expenditure of public funds on behalf of an indigent litigant is proper only when
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authorized by Congress. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989). The in forma pauperis
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statute does not authorize the expenditure of public funds for expert witnesses. See 28 U.S.C.
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§ 1915.
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Rule 706 of the Federal Rules of Evidence gives the court the discretion to
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appoint experts. Walker v. American Home Shield Long Term Disability Plan, 180 F.3d 1065,
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1071 (9th Cir. 1999). Appointment may be appropriate when "scientific, technical, or other
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specialized knowledge will assist the trier of fact to understand the evidence or decide a fact in
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issue. . . ." Ledford v. Sullivan, 105 F.3d 354, 358-59 (7th Cir. 1997). As defendants have not
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responded to this motion, the court will address it at the trial confirmation hearing.
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IT IS THEREFORE ORDERED:
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1. Plaintiff’s motion for disqualification (ECF No. 247) and motion for
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reconsideration of an earlier denial of disqualification (ECF No. 239) are denied.
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2. Plaintiff’s motion for a temporary restraining order (ECF No. 257) is stricken.
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3. The court will consider the motion for the appointment of experts (ECF No.
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254) at the trial confirmation hearing.
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DATED: November 8, 2011.
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UNITED STATES DISTRICT JUDGE
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