United States District Court, D. Montana, Great Falls Division
BRIAN MORRIS, District Judge.
Plaintiff Darrell Sharp, a state inmate proceeding without counsel, filed a Complaint on August 28, 2014, alleging he was assaulted by a correctional officer and another inmate at CCA. He claimed that Defendants CCA, Toole County, and Warden Fender were liable under 42 U.S.C. § 1983 because they failed to protect him from the inmate and refused to bring criminal charges against the officer. (Complaint, Doc. 2.)
Pursuant to 28 U.S.C. §§ 1915, 1915A, United States Magistrate Judge Strong conducted an initial screening of the Complaint and found that it failed to state a viable claim against the named Defendants. Judge Strong gave Mr. Sharp an opportunity to file an amended complaint and provided an extension of time in which to do so. (Docs. 12, 14.) Mr. Sharp failed to file an amended complaint and his case was recommended for dismissal. (Doc. 19.) Mr. Sharp filed objections to the recommendation to dismiss (Doc. 20), but after a de novo review of the Findings and Recommendations this Court found that there was no error in the Findings and Recommendations and the case was dismissed and judgment entered. (Docs. 23, 24.)
Mr. Sharp filed a document entitled "Motion to Strike Order Adopting Findings and Recommendations" on March 2, 2015. (Doc. 25.) Mr. Sharp's motion could be construed as a Rule 59(e) Motion to Alter or Amend a Judgment or as a Rule 60(b) Motion for Relief from Judgment or Order. The Ninth Circuit set forth the following grounds justifying reconsideration under Rule 59(e):
(1) if such motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if such motion is necessary to present newly discovered or previously unavailable evidence; (3) if such motion is necessary to prevent manifest injustice: or (4) if the amendment is justified by an intervening change in controlling law.
Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). A Rule 59(e) motion "must be filed no later than 28 days after the entry of the judgment."
Rule 60(b) provides for reconsideration where one or more of the following is shown: (1) mistake, inadvertence, surprise or excusable neglect; (2) newly discovered evidence, that with reasonable diligence could not have been discovered before the time to move for a new trial under Rule 59; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged; or (6) any other reason justifying relief. Fed.R.Civ.P. 60(b).
A motion for reconsideration filed within twenty-eight days of entry of judgment is considered under Federal Rule of Civil Procedure 59(e); a later-filed motion is considered under Rule 60(b). United States v. Comprehensive Drug Testing, Inc., 513 F.3d 1085, 1098 (9th Cir. 2008) ( quoting Am. Ironworks & Erectors, Inc. v. N. Am. Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001)).
Mr. Sharp filed his Motion on March 2, 2015, which was within twenty-eight days of the entry of the February 20, 2015 Judgment. Accordingly, the Motion will be analyzed pursuant to Rule 59(e), although the analysis and ruling would be the same if analyzed pursuant to Rule 60(b)(2).
Mr. Sharp moves to strike the Order Adopting the Findings and Recommendations for the following reasons: (1) the Judges were biased and he has filed a Judicial Standards Complaint against them making the order invalid; (2) the case was dismissed prior to discovery and therefore allows an assault to go unpunished and he has been retaliated against; and (3) he was denied counsel.
1. Bias-Judicial Standards Commission
Mr. Sharp suggests that the Judges involved in this matter should have been recused and the failure to do so makes the Order adopting the Findings and Recommendations invalid. The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: "[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (quotation omitted). Ordinarily, the alleged bias must stem from an "extrajudicial source." Liteky v. United States, 510 U.S. 540, 554-56, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474 (1994). "The judge against whom the motion for recusal is filed may determine the legal sufficiency of the affidavit." O'Connor v. U.S., 935 F.2d 275 (9th Cir. 1991).
"[J]udicial rulings alone almost never constitute valid basis for a bias or partiality motion." Id. "[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id.
Mr. Sharp alleges the Judges failed to follow the Federal Rules of Civil Procedure and Rules of Evidence, there were discovery abuses, and a violation of his right to a jury trial. He also contends he has filed a complaint with the Judicial Standards Commission making the order invalid. All of the Judges involved in this matter have followed the rules of procedure and evidence. The Court conducted an initial screening of Mr. Sharp's Complaint as required by 28 U.S.C. §§ 1915, 1915A. The Court gave Mr. Sharp an opportunity to file an amended complaint after discussing the defects with his initial Complaint. And the Court gave Mr. Sharp an extension of time to file an amended complaint. Mr. Sharp did not name a proper defendant in his initial complaint. The Court advised Mr. Sharp of this problem and he failed to correct it. The Court made efforts to protect Mr. Sharp's rights and none of the Judges ever displayed antagonism ...