Unpublished Disposition, 934 F.2d 324 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 324 (9th Cir. 1987)

Lennal Khabir SHABAZZ, Plaintiff-Appellant,v.J. Michael QUINLAN, Director, U.S. Bureau of Prisons, J.D.Williams, Director, U.S. Bureau of Prisons, SCRO,et al., Defendants-Appellees.

No. 88-6441.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided May 31, 1991.

Before: HUG, KOZINSKI, and LEAVY, Circuit Judges.


MEMORANDUM** 

Lennal Khabir Shabazz, a federal prisoner, appeals pro se the district court's dismissal of his action brought pursuant to Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388 (1971). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal for failure to state a claim, Mir v. Little Company of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988), and we affirm.

Shabazz filed this action in district court seeking compensatory and punitive damages against the defendants, as well as declaratory relief, for their failure to release him immediately from custody following this court's decision in Shabazz v. Carroll, 814 F.2d 1321 (9th Cir. 1987) (Shabazz I) .1 

In Shabazz I, this court determined that Shabazz was entitled to credit toward his federal sentence for time spent in state custody, and ordered the district court to issue an order granting such credit. 814 F.2d at 1323-24. This court's decision was filed on April 10, 1987, and the district court entered it's order awarding credit on April 28, 1987. On April 27, 1987, however, this court granted the Appellees in Shabazz I an extension of time in which to file their petition for rehearing. On May 1, 1987, the district court issued an order staying its April 24th order pending this court's decision on the petition for rehearing. On November 25, 1987, this court granted the petition for rehearing, vacating the portion of Shabazz I that granted Shabazz credit toward his federal sentence for time spent in state custody. See Shabazz v. Carroll, 833 F.2d 149 (9th Cir. 1987), cert. denied, 487 U.S. 1207 (1988), (Shabazz II) .

In this action, Shabazz argues that upon issuance of Shabazz I, he became a "mandatory releasee" and should have been released until the decision in Shabazz II was rendered. Failure to release him, he argues, constituted a denial of his due process and liberty interest rights. Shabazz's claim is without merit. The mandate did not issue in Shabazz I due to the filing of appellees' petition for rehearing. Moreover, the stay in the district court prevented Shabazz from receiving any credit on his sentence. Thus, Shabazz was not entitled to release pending the outcome of the petition for rehearing. Because he was not entitled to release, Shabazz's claim regarding loss of good time credits is also without merit.

Shabazz next contends that it was error for the district court to deny him in forma pauperis status, thereby necessitating his paying the $120.00 filing fee. We review denial of leave to proceed in forma pauperis for an abuse of discretion. O'Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir. 1990). "A district court may deny in forma pauperis status at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit." Tripati v. First Nat'l Bank & Trust, 821 F.2d 1368, 1370 (9th Cir. 1987). We cannot say the district court abused its discretion because it appears, from an examination of the allegations contained in the complaint, that the district court properly may have viewed his claim as frivolous.

Shabazz contends that this action should not have been transferred to Judge Real, and the judge erred in failing to recuse himself because he is biased against Shabazz. The judge's previous adverse rulings against Shabazz are insufficient grounds for recusal. Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984). Thus, the district court judge did not err in failing to recuse himself.

Shabazz next contends the magistrate acted in excess of her authority in rejecting his summary judgment motion. Shabazz filed one document in response to the defendants' motion to dismiss entitled "Plaintiff's Opposition to Defendants' Motion to Dismiss and Motion for Summary Judgment." There was no separate summary judgment motion in the document nor was there any separate section of the document dealing solely with the reasons why summary judgment should be granted in his favor. Thus, the magistrate did not err in construing the entire document as Shabazz's opposition to the motion to dismiss.

Finally, Shabazz contends the district court erred in failing to conduct a de novo review of the magistrate's findings. This contention is without merit because the district court's order adopting the magistrate's findings and recommendations clearly states that the judge conducted a de novo review.

AFFIRMED.

 *

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

 1

The district court determined that Shabazz's complaint also sought relief cognizable only in a habeas corpus petition. Accordingly, the court determined that after exhausting administrative remedies, Shabazz should file a petition in the district court in the district of his confinement

In his reply brief, Shabazz argues that " [t]his is in no way a habeas corpus proceeding" and that "the monetary relief is ... the jurisdiction of this court ... should a finding be established that appellant's liberty was deprived illegally." Thus, we construe this only as a Bivens action seeking monetary damages from the defendants.