Iseke v. City of Honolulu

• Decision Date: 29 December 2017
• Docket Number: CV 15-00193 LEK-RLP
• Parties: MARVIN ISEKE, ALICE UBANDO, SHIRLEY ANN LESSARY, Plaintiffs, v. CITY AND COUNTY OF HONOLULU, ET AL., Defendants.
• Court: U.S. District Court — District of Hawaii

MARVIN ISEKE, ALICE UBANDO, SHIRLEY ANN LESSARY, Plaintiffs, v. CITY AND COUNTY OF HONOLULU, ET AL., Defendants.

CV 15-00193 LEK-RLP

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

December 29, 2017

ORDER DENYING PLAINTIFFS' MOTION TO RECONSIDER COURT'S SEPTEMBER 20, 2017 ORDER

On September 20, 2017, this Court issued the Order: (1) Granting the City's Motion for Summary Judgment; (2) Denying Plaintiffs' Motion for Summary Judgment; (3) Denying the City's Motion to Strike as Moot; (4) Denying Plaintiffs' Motion for Injunctive Relief as Moot; and (5) Granting HUD's Second Motion to Dismiss ("9/20/17 Order"). [Dkt. no. 143.] On October 5, 2017, pro se Plaintiffs Marvin Iseke, Alice Ubando, and Shirley Ann Lessary ("Plaintiffs") filed a motion for reconsideration of the 9/20/17 ("Motion for Reconsideration"). [Dkt. no. 144.] Defendant City and County of Honolulu (the "City") and Defendant United States Department of Housing and Urban Development ("HUD," and collectively, "Defendants") each filed its memorandum opposition on October 23, 2017. [Dkt. nos. 146, 147.] Plaintiffs filed their reply on November 8, 2017. [Dkt. no. 148.] The Court has considered the Motion for Reconsideration as a non-hearing matter pursuant to Rule LR7.2(e) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). Plaintiffs' Motion for Reconsideration is denied for the reasons set forth below.

BACKGROUND

The background of this matter is fully set forth in this Court's 9/20/17 Order. The 9/20/17 Order granted the City's motion for summary judgment on alleged violations of the National Environmental Policy Act ("NEPA"), finding no evidence that the City's decision-making process was arbitrary, capricious, an abuse of discretion, or contrary to law. [9/20/17 Order at 16-31.] The 9/20/17 Order also granted HUD's motion to dismiss because: 1) Count II was barred by sovereign immunity; and 2) Counts I and II failed to state a claim on which relief could be granted. [Id. at 31-39.] Plaintiffs now argue that reconsideration is appropriate because: 1) the Court's impartiality might reasonably be questioned; 2) the Court did not hear oral argument; 3) dismissal of Plaintiffs' claim against HUD was unfair because Plaintiffs had been denied leave to file a second amended complaint; and 4) the 9/20/17 Order misapplied the relevant law.

STANDARD

I. Motion for Reconsideration

This Court has previously stated that a motion for reconsideration

"must accomplish two goals. First, a motion for reconsideration must demonstrate reasons why the court should reconsider its prior decision. Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature to induce the court to reverse its prior decision." SeeDavis v. Abercrombie, Civil No. 11-00144 LEK-BMK, 2014 WL 2468348, at *2 (D. Hawai`i June 2, 2014) (citation and internal quotation marks omitted). This district court recognizes three circumstances where it is proper to grant reconsideration of an order: "(1) when there has been an intervening change of controlling law; (2) new evidence has come to light; or (3) when necessary to correct a clear error or prevent manifest injustice." Tierney v. Alo, Civ. No. 12-00059 SOM/KSC, 2013 WL 1858585, at *1 (D. Hawai`i May 1, 2013) (citing School District No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993)).

Banks v. McHugh, Civil No. 11-00798 LEK-KSC, 2014 WL 5581326, at *1 (D. Hawai`i Oct. 31, 2014). "Mere disagreement with a previous order is an insufficient basis for reconsideration." White v. Sabatino, 424 F. Supp. 2d 1271, 1274 (D. Hawai`i 2006).

In order to justify reconsideration on the basis of newly-discovered evidence, the movant must show that the evidence "(i) is newly discovered; (ii) could not have been discovered through due diligence; and (iii) is of such a material and controlling nature as will probably change the outcome." United States v. Tanoue, 165 F.R.D. 96, 97 (D. Hawai`i 1995) (citingCoastal Transfer Co. v. Toyota Motor Sales, U.S.A., 833 F.2d 208, 211 (9th Cir. 1987)), aff'd 94 F.3d 1342 (9th Cir. 1996).

II. Recusal

28 U.S.C. § 455 states in pertinent part:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]

This Court has stated:

"The goal of section 455(a) is to avoid even the appearance of partiality." Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988) (citation and quotation marks omitted). The Ninth Circuit has stated:

Proof of actual bias is not required under § 455(a). Instead, bias should "be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance." Liteky v. United States, 510 U.S. 540, 548, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994). "It is well established that the recusal inquiry must be made from the perspective of a reasonable observer who is informed of all surrounding facts and circumstances." Cheney v. U.S. Dist. Ct., 541 U.S. 913, 924, 124 S. Ct. 1391, 158 L. Ed. 2d 225 (2004) (emphasis and internal quotation marks omitted).

In re Marshall, 721 F.3d 1032, 1041 (9th Cir. 2013) . . . .

Barker v. Gottlieb, Civil No. 13-00236 LEK-BMK, 2014 WL 6984219, at *2 (D. Hawai`i Dec. 10, 2014). This district court has stated:

"the substantive standard is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (citations, quotations, and alterations omitted).[¹] The "reasonable person" is not someone who is "hypersensitive or unduly suspicious," but rather a "well-informed, thoughtful observer" who "understand[s] all the relevant facts" and "has examined the record and law." United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008) (citations omitted). "The standard must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice." Id. at 913 (quotations omitted).

Pregana v. CitiMortgage, Inc., Civil No. 14-00226 DKW-KSC, 2014 WL 4199340, at *1 (D. Hawai`i Aug. 22, 2014) (some alterations in Pregana).

DISCUSSION

Plaintiffs criticize the 9/20/17 Order as "mostly just lots of quotes from prior cases." [Motion for Reconsideration at 6.] Plaintiffs also believe that their concerns "don't matter to the judicial system . . . . Not a word of ours was taken intoserious consideration." [Reply at 7.²] Plaintiffs' arguments are taken seriously and considered in light of the rule of law established by prior cases. The United States Supreme Court has stated that fidelity to its own precedent is fundamental to "a society governed by the rule of law." Akron v. Akron Ctr. for Reproductive Health, Inc., 462 U.S. 416, 420 (1983), overruled on other grounds by, Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833 (1992). Moreover, this Court must follow the law as set forth in the cases of the Ninth Circuit and the Supreme Court. See Ky Minh Pham v. Hickman, 262 Fed. App'x 35, 38 (9th Cir. 2007) ("[I]n the absence of Supreme Court law, [a district court] is bound to follow Ninth Circuit precedent."). Plaintiffs assert that the federal courts do not provide justice, but "protect the [bad] Mayor and say everything that the city does is legal." [Motion for Reconsideration, Decl. ("Joint Decl.") at ¶ 20.³] Plaintiffs further assert that they "never stood a chance in this case because Judge Leslie Kobayashi appears to be a good friend of Mayor Kirk Caldwell," and in support, attach photos of this Court presiding over the Mayor's swearing-in ceremony. [Id. at ¶ 5; id., Exh. B.] These portions of the Motion forReconsideration will be construed as a motion for recusal under 28 U.S.C. § 455. See Barker, 2014 WL 6984219, at *2 n.7 (construing pro se motion for recusal under § 455 where it lacked the affidavit required for a 28 U.S.C. § 144 recusal motion); see also Bernhardt v. Los Angeles Cty., 339 F.3d 920, 925 (9th Cir. 2003) ("Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as complaints.").

The fact that this Court presided over Mayor Caldwell's swearing-in ceremony would not lead a reasonable person to question the Court's impartiality. See, e.g., United States v. Olis, 571 F. Supp. 2d 777, 785 (S.D. Tex. 2008) (recusal not necessary under either § 144 or § 455 standard where judge had, inter alia, administered the U.S. Attorney's oath of office at a public celebration); see also, e.g., United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1174 (9th Cir. 2017) ("judge's alleged 'following' of the U.S. Attorney's office on Twitter [did not] create[] an appearance of bias"); United States v. Murphy, 768 F.2d 1518, 1537-38 (7th Cir. 1985) ("Social as well as official communications among judges and lawyers" is desirable, but recusal is appropriate where a judge "was such a close friend of the prosecutor that the families of both were just about to take a joint vacation."). Further, Plaintiffs have not identified any factual or legal error that this Court allegedly made because of the purported bias in favor of Mayor Caldwell.To the extent it seeks recusal under § 455, the Motion for Reconsideration is denied.

As to the challenges to the 9/20/17 Order, Plaintiffs do not argue that there has been an intervening change in law. Insofar as Plaintiffs submit a declaration and four exhibits with the Motion for Reconsideration,⁴ they appear to argue that reconsideration of the 9/20/17 Order is warranted based on newly-discovered evidence. Plaintiffs, however, do not attempt to argue that the...