United States District Court, D. Massachusetts
ORDER ON PENDING MOTIONS AND TO REOPEN
Richard G. Stearns, UNITED STATES DISTRICT JUDGE
reasons stated below, the case will be reopened sua
sponte. Plaintiff's motion for recusal is denied and
the motions for copy of the complaint and for amendment are
allowed. Plaintiff shall have additional time either to
supplement his amended complaint or file a second amended
September 12, 2016, Plaintiff Luis Diaz (“Diaz”),
while a pre-trial detainee at MCI - Cedar Junction, filed an
eighteen-page, handwritten complaint accompanied by an
Application to Proceed Without Prepayment of Fees. By
Memorandum and Order dated November 21, 2016, the Court
allowed plaintiff's Application to Proceed Without
Prepayment of Fees, denied his motion to appoint counsel or a
guardian and directed plaintiff to file an amended complaint
by January 2, 2017.
January 4, 2017, after no response was filed, an order of
dismissal was entered. On January 6, 2017, two days after
dismissal, plaintiff's amended complaint was filed. While
the amended complaint was pending on the docket, Diaz filed a
Notice of Appeal stating that he filed a timely amended
complaint. On February 2, 2017, the Court issued a notice of
intent to vacate the dismissal and to reopen the case. In
response to the Court's notice of intent, the United
States Court of Appeals for the First Circuit remanded the
before the Court are plaintiff's motions for (1) copy of
the original complaint; (2) amendment of the amended
complaint; and (3) recusal.
Court recognizes that this case was closed in
error and will direct the Clerk to reopen this
matter. In the pending motions, Diaz seeks, among other
things, copies of his original complaint, amended complaint
and “all evidence [he submitted in] his attempt to file
a sufficient complaint.” See Docket No. 25.
Diaz states that he rushed to submit his amended complaint
and was prejudiced by his lack of access to his property,
including his legal documents. See Docket No. 26.
Diaz asserts that he “should have been allowed to amend
his complaint with all the pertinent documents never given to
him because of [judicial indifference].” Diaz again
seeks appointment of counsel and/or a guardian ad litem.
the Court will not conduct a Rule 17 hearing or appoint
counsel for Diaz at this time, Diaz will be provided an
opportunity either to file a supplement or a second amended
complaint that complies with both the directives of the
November 21, 2016 Memorandum and Order (Docket No. 8) as well
as the basic pleading requirements of the Federal Rules of
Civil Procedure. The filing of amended and supplemental
pleadings is governed by Rule 15 of the Federal Rules of
Civil Procedure. As an amended complaint completely
supersedes an earlier-filed complaint, see Brait Builders
Corp. v. Massachusetts, Div. of Capital Asset Mgt., 644
F.3d 5, 9 (1st Cir. 2011) (citation omitted), Diaz should
repeat in a second amended complaint any allegations from his
earlier complaints that he wishes to be part of an operative
second amended complaint. The Clerk will be directed to
provide Diaz with copies of his original and amended
complaints as well as the Court's November 21, 2016
Memorandum and Order.
Diaz seeks recusal pursuant to 28 U.S.C. § 455(a)
asserting that he “objects to the [denial of]
appointment of an attorney” and that he has “lost
faith in the judge after his rushfull (sic) decision to
dismiss the case while ignoring the evidence of
interference.” Section 455(a) requires that a judge
“disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a); United States v. Sampson, 148
F.Supp.3d 75, 79 (D. Mass. 2015). Under § 455(a),
“a judge has a duty to recuse himself if his
impartiality can reasonably be questioned; but otherwise, he
has a duty to sit.” United States v. Snyder,
235 F.3d 42, 46 (1st Cir. 2000). "[J]udges are not to
recuse themselves lightly under § 455(a)."
Id. at 45. Recusal is not warranted “[w]here
... the charge of bias reflects nothing more than
‘dissatisfaction with a Court's rulings and case
management.'” United States v. Dembrowski,
2011 WL 8335172, at *3 (D. Mass. July 19, 2011) (quoting
Fideicomiso De La Tierra del Cano Martin Pena v.
Fortuno, 631 F.Supp.2d 134, 137 (D.P.R. 2009)).
plaintiff's motion must be denied because he has made no
showing impartiality. Because the alleged grounds for recusal
are primarily based upon his disagreement with the
Court's rulings, he failed to state a sufficient basis
for recusal. Liteky v. United States, 510 U.S. 540,
555 (1994) ("[J]udicial rulings alone almost never
constitute a valid basis for a bias or partiality motion....
Almost invariably, they are proper grounds for appeal, not
for recusal."); accord In re Boston's Children
First, 244 F.3d 164, 168 n. 7 (1st Cir. 2001)
(party's disagreement with trial judge over adverse
rulings are almost invariably proper grounds for appeal, not
recusal, even when the judicial rulings in question may be
erroneous); Obert v. Republic W. Ins. Co., 190
F.Supp.2d 279, 295 (D. R.I. 2002) (party's disagreement
with the judge over the law is not grounds for
disqualification) (citations omitted). Thus, plaintiff's
motion will be denied.
ACCORDINGLY, for the reasons stated above, it is hereby
Clerk is directed to reopen this action;
Plaintiff's motion (Docket No. 24) ...