Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Jim Fitch, Plaintiff, vs. D. Schriro, et. al.,

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Defendants.
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No. CV 04-0486-PHX-SMM (VAM) ORDER

A. Background On March 10, 2004, Plaintiff filed a Complaint pursuant to 42 U.S.C. §1983. By order of the Court filed on May 28, 2004, Plaintiff was directed to file an Amended Complaint (Doc. #17). Plaintiff filed an Amended Complaint , which was not in compliance with the Court's order (Doc. #22). By order of the Court filed on July 23, 2004, Plaintiff was again directed to file an Amended Complaint, in compliance with Rule 8(a) of the Federal Rules of Civil Procedure (Doc. #24). On August 5, 2004, Plaintiff filed an Amended Complaint (Doc. #25). Plaintiff's Amended Complaint was not in compliance with the Court's previous orders. Plaintiff again failed to comply with Rule 8(a) of the Federal Rules of Civil Procedure and the Local Rules of Practice. Plaintiff was advised that he would be provided with one more opportunity to amend, in compliance with the rules and the Court's previous orders (Doc. #26).

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In the Court's August 26, 2004 order, the Court noted that Plaintiff's Second Amended Complaint was not a good faith attempt to obtain relief, but rather, it was intended to harass the Court. The Court noted that Plaintiff's behavior and inappropriate and threatening language and demands were unacceptable and potentially sanctionable. The Court advised Plaintiff that his conduct and abusive language violated the decorum of this Court (Doc. #26 at 2). On September 7, 2004, Plaintiff filed a Third Amended Complaint, which is pending before the Court. Also pending is Plaintiff's Motion For Court Order (Doc. #30). B. Statutory Screening of Prisoner Complaints The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the Plaintiff has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). The Court also must dismiss a complaint or portion thereof if Plaintiff fails to exhaust any administrative remedy available to him. 42 U.S.C. § 1997e(a). C. Third Amended Complaint. Plaintiff has named the undersigned as a Defendant in this matter in his Third Amended Complaint. 28 U.S.C. § 455(b)(5)(i) states that a judge "shall ... disqualify himself" when he "[i]s a party to the proceeding . . . ." However, courts have construed this section as not requiring automatic disqualification. See Anderson v. Roszkowski, 681 F. Supp. 1284, 1289 (N.D. Ill.1988), aff'd, 894 F.2d 1338 (7th Cir.1990); see also Tapia-Ortiz v. Winter, 185 F.3d 8, 10 (2d Cir.1999) (holding that where appellant indiscriminately named all then-current Second Circuit judges as defendants, under the "rule of necessity" the court was not disqualified from resolving the appeal, despite § 455(b)(5)(i)). "Courts have refused to disqualify themselves under Section 455(b)(5)(i) unless there is a legitimate basis for suing the judge" in order to prevent plaintiffs from "judge-shopping." Anderson, 681 F. Supp. at
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1289 (citing In re Martin-Trigona, 573 F. Supp. 1237, 1243 (D. Conn.1983)). As one commentator has explained: A judge who is named as a defendant in a plaintiff's amended complaint is not required to disqualify himself or herself under 28 U.S.C.A. § 455(b)(5)(i) unless there is a legitimate basis for suing the judge. For a judge to be disqualified simply because the plaintiff has sued the judge would be to allow the plaintiff to manipulate the identity of the decision-maker and thus to engage in judge-shopping. 32 Am.Jur.2d Federal Courts § 149. Accordingly, the Court now turns to whether Plaintiff

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has asserted a legitimate basis for suing the undersigned.
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Plaintiff asserts that the undersigned has deprived Plaintiff access to the court and a
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jury trial. Plaintiff's assertion is without a legitimate basis. Plaintiff's prior Complaints in
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this matter were appropriately dismissed for cause with leave to amend, and therefore this
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Court has not acted in any fashion that would impede the rights of Plaintiff. Rather, it is
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apparent to this Court that Plaintiff is attempting to improperly engage in judge-shopping.
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Accordingly, the undersigned shall not recuse himself from this matter as there is no
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legitimate basis for Plaintiff to sue the undersigned.
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Plaintiff's Third Amended Complaint is not in compliance with the Court's previous
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directives. Count I of the Complaint has no relevance to the merits of Plaintiff's claims and
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is in direct violation of the Court's previous order. Plaintiff has again used inappropriate and
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threatening language and has threatened the undersigned Judge. Plaintiff's Third Amended
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Complaint is not a good faith attempt to obtain relief, but appears to be intended to harass the
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Court. Behavior of this nature is unacceptable.
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In Counts II and III, Plaintiff has failed to set forth specific facts related to these
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claims. Plaintiff has also failed to tell the Court in short, plain statements: (1) the
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constitutional right Plaintiff believes was violated; (2) name of the person who violated the
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right; (3) exactly what that individual did or failed to do; (4) how the action or inaction of
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that person is connected to the violation of Plaintiff's constitutional right; and (5) what
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specific injury Plaintiff suffered because of that person's conduct. Rizzo v. Goode, 423 U.S.
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362, 371-72, 377 (1976).
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Plaintiff has been provided with numerous opportunities to amend his Complaint and was provided with specific instructions on how to do so. Plaintiff has failed to comply with the Court's directives. Moreover, Plaintiff has continued to submit pleadings which contain abusive language and violate the decorum of the Court. Plaintiff was previously advised that if his improper conduct persists, the Court would impose sanctions including dismissal of this action (Doc. #26 at 3). Accordingly, this action will be dismissed without prejudice for Plaintiff's failure to comply with the Court's previous orders. D. Pending Motion Pending before the Court is Plaintiff's Motion For Court Order (Doc. #30). In his Motion, Plaintiff contends that the Complaint against the Defendants "is being deliberately stalled by Defendant McNamee." Plaintiff seeks for the Court to order that the undersigned judge "immediately set the case for trial by jury" and that the undersigned judge recuse himself immediately after making the orders set forth herein." Plaintiff further alleges that if the Court fails to adhere to these directives, he "will proceed to the United States Supreme Court for a writ of Mandamus." Plaintiff has again used threatening and abusive language and has placed demands on the Court, in violation of the Court's previous directives. Behavior of this nature is unacceptable and potentially sanctionable, as the Court previously advised Plaintiff. Accordingly, Plaintiff's motion will be denied. IT IS THEREFORE ORDERED that: (1) The Third Amended Complaint and this action are dismissed for failure to state a claim pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), and the Clerk of Court shall enter judgment accordingly; (2) That Plaintiff's Motion For Court Order (Doc. #30) is DENIED; /// /// ///

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(3) The Clerk of Court shall make an entry on the docket in this matter indicating that the dismissal for failure to state a claim falls within the purview of 28 U.S.C. § 1915(g).

DATED this 17th day of September, 2005.

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