Harvey v. City of S. Lake Tahoe
| Decision Date | 27 August 2013 |
| Docket Number | No. 2:10-cv-1653-KJM-EFB PS,2:10-cv-1653-KJM-EFB PS |
| Court | U.S. District Court — Eastern District of California |
| Parties | DANIEL THOMAS HARVEY, Plaintiff, v. CITY OF SOUTH LAKE TAHOE; EL DORADO COUNTY; ANDREW EISSINGER; CHARLES DUKE; SHANNON LANEY; JAKE HERMINGHAUS, Defendants. |
This action, in which plaintiff is proceeding pro se, is before the undersigned pursuant to Eastern District of California Local Rule 302(c)(21). See 28 U.S.C. § 636(b)(1). Presently pending for decision are two motions to dismiss plaintiff's fourth amended complaint, ECF Nos. 80 and 81,1 as well as plaintiff's request for "removal" of the undersigned from this case, ECF No. 87. Specifically, defendant El Dorado County (the "County") moves to dismiss because plaintiff's fourth amended complaint does not include allegations that are sufficient to state aclaim against the County under Monell, ECF No. 80,2 and defendants the City of South Lake Tahoe (the "City"), South Lake Tahoe Police Officer Andrew Eissinger, South Lake Tahoe Police Officer Charles Duke, South Lake Tahoe Police Officer Shannon Laney, and South Lake Tahoe Police Officer Jake Herminghaus (collectively, the "individual defendants") move to dismiss because plaintiff's fourth amended complaint does not include allegations that are sufficient to state a claim against the City under Monell and it does not comply with Federal Rules of Civil Procedure 8(a) or 10(b), or this court's previous orders, ECF No. 81. Plaintiff opposes both motions to dismiss, and requests that the undersigned be "removed" as the magistrate judge assigned to this action. ECF Nos. 82, 83, 87. For the reasons stated herein, plaintiff's motion for recusal, styled as a "motion for removal" is denied. Further, the County's motion to dismiss must be granted without leave to amend, the City's motion to dismiss be must granted without leave to amend, and the individual defendants' motion to dismiss must be granted with leave to amend.
As a threshold matter, plaintiff has raised the question of whether the undersigned must recuse from this case.
On July 26, 2013, plaintiff filed a request that the undersigned be "removed" as the magistrate judge assigned to this case. ECF No. 87. Plaintiff contends that the undersigned actions "demonstrate bias in favor of [the defendant] police officers; and indifference towards the rights and welfare of the plaintiff." Id. at 3.
The court construes the request as a motion for recusal. However, plaintiff has not shown that recusal is appropriate. The applicable recusal statute, 28 U.S.C. § 455, provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). He shall alsodisqualify himself when he has "a personal bias or prejudice concerning a party . . . ." Id. § 455(b)(1). Although a judge must recuse himself in those circumstances, he must not simply recuse out of an abundance of caution when the facts do not warrant recusal. Rather, there is an equally compelling obligation not to recuse where recusal in not appropriate. See United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008) ().
Here, plaintiff has not shown any basis upon which the undersigned should recuse. He has not shown that the undersigned's impartiality could reasonably be questioned or that the undersigned has any personal bias or prejudice toward plaintiff. To the contrary, it appears that plaintiff seeks the undersigned's recusal because plaintiff is dissatisfied with the court's decisions to submit defendants' motions to dismiss without oral argument, and is dissatisfied with what plaintiff contends has been an undue delay of his case. However, the Local Rules expressly provide that a hearing may be vacated when oral argument would not be of material assistance. See E.D. Cal. L.R. 230(g). Each time the court has vacated a hearing, it has found that oral argument would not be of assistance to the court.3 Plaintiff has provided no basis for recusal. Accordingly, the motion is denied.
Plaintiff initially filed this action in June 2010 against the City of South Lake Tahoe, Officers Eissinger and Duke, and the County of El Dorado, alleging a claim under 42 U.S.C. § 1983 and various state law claims. ECF No. 1. After the County moved to dismiss thecomplaint, plaintiff filed a first amended complaint. ECF No. 13. The court construed that first amended complaint as a motion to amend and granted it. ECF No. 15. Thereafter, the County once again moved to dismiss the amended complaint, ECF No. 16, and the City, Eissinger, and Duke moved to dismiss, to strike, and for a more definite statement, ECF No. 17. The court granted the motions to dismiss and granted plaintiff leave to amend some of his claims. ECF Nos. 33, 35.
Then, on October 19, 2011, plaintiff filed a second amended complaint. ECF No. 38. The County moved to dismiss, ECF No. 40, as did the City, Eissinger, and Duke, ECF No. 39. Again, the court granted the County's motion to dismiss and dismissed the claims against the County without leave to amend. ECF Nos. 50, 56. The court also granted the City defendants' motion to dismiss, dismissed plaintiff's state law claims against those defendants without leave to amend, and dismissed plaintiff's Monell claims against the City and plaintiff's federal claims against Eissinger and Duke with leave to amend. Id.
On July 25, 2012, plaintiff filed a third amended complaint herein. ECF No. 57. Plaintiff also filed another complaint against the City of Lake Tahoe; Douglas County, Nevada; El Dorado County, California; Robert K. Priscaro; and City of Lake Tahoe Officers Jake Herminghaus, Shannon Lacey, and Andrew Eissinger, alleging a claim under 42 U.S.C. § 1983 against all of the defendants and a defamation claim against Douglas County. See 2:12-cv-526-KJM-EFB, Compl., ECF No. 1. In both actions, each defendant moved to dismiss.
In the first action, the court granted the individual defendants' and County's motions to dismiss relating to plaintiff's state law claims without leave to amend. ECF No. 73 at 10; ECF No. 78. The court granted the City's and the individual defendants' motions to dismiss with leave to amend. Specifically, plaintiff was permitted to amend his § 1983 Monell claim against the City and his § 1983 claim against defendants Eissinger and Duke.
As for the second action, the court granted Douglas County's motion to dismiss without leave to amend. ECF No. 73 at 16-19; ECF No. 78. The court granted El Dorado County'smotion to dismiss relating to the claim against Robert Priscaro for malicious prosecution, and the claim against El Dorado County for excessive bail, without leave to amend. The court granted El Dorado County's motion to dismiss relating to the incident at the El Dorado county jail with leave to amend that claim in the instant action, and granted the individual defendants' motion to dismiss as duplicative of those claims in the first action. Id. at 23-26. The court closed the second case but stated that plaintiff would be permitted to include in any fourth amended complaint in this action, his § 1983 claims against defendants Herminghaus and Laney and/or a § 1983 Monell claim El Dorado County based only on the County's alleged failure to provide him water while in the County jail. ECF No. 78 at 2.
Plaintiff then filed a fourth amended complaint herein against the City, the County, Eissinger, Duke, Laney, and Herminghaus. ECF No. 79. All defendants now move to dismiss that complaint.
Plaintiff's fourth amended complaint asserts claims under U.S.C. § 1983 against the City, the individual officers, and the County. 4th Am. Compl. (4AC), ECF No. 79. Plaintiff suggests that each defendant violated his Eighth Amendment right to be free from excessive bail, and his Fifth and Fourteenth Amendment rights to due process. Id. at 2. Additionally, he suggests that the City and the individual defendants violated his Fourteenth Amendment right to equal protection. Id. at 2. The underlying basis for this action are three separate incidents: (1) the "Dog Bite Incident," (2) the "Brick Incident," and (3) an incident at the El Dorado County Jail. Id. at 6-15.
Plaintiff refers to the first incident as the "Dog Bite Incident." Id. at 3. Plaintiff alleges that on March 18, 2010, he was bitten by a dog belonging to James Handley, and when he informed Mr. Handley of the bite, Mr. Handley "fled from the grocery store [on a skateboard] taking the dog with him before [plaintiff] could obtain the dog's vaccination information." Id. at 3, 5. Plaintiff contends that he "had no choice but to detain the dog owner with whatever method[he] deemed reasonable." Id. at 4. Plaintiff chased Handley on his bicycle and because Handley "refused to stop" plaintiff "pushed [his] bicycle against [Handley]" and thereafter Handley dropped his skateboard. Id. at 5. Plaintiff then grabbed the skateboard and waited for the police, along with Mr. Handley. Id. Plaintiff alleges that when Officers Eissinger and Duke arrived he was sitting down with the skateboard. Id. at 3, 5. Officer Eissinger interviewed Mr. Handley and a woman witness together while Duke interviewed plaintiff alone. Id. at 3-5. The female witness and Mr. Handley's stories differed from plaintiffs. Id.
Plaintiff alleges that at some point Officers Duke and Eissinger spoke, and during this conversation Officer Eissinger "explained to [Officer] Duke that with [the] woman witness" they could frame plaintiff, and that Officer Duke agreed to do so. Id. at 3. Plaintiff contends that the officers "deliberately ignored the witness" from the grocery store who had called 911, and then...
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