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Riser v. Washington State University

United States District Court, E.D. Washington

June 27, 2018

DARRYL W. RISER, Plaintiff,


          Thomas O. Rice Chief United States District Judge

         BEFORE THE COURT is Defendants Washington State University, Don Holbrook, Brian Allen Dixon, and Randi N. Croyle's Motion to Dismiss, for More Definite Statement, or to Strike (ECF No. 30) along with multiple motions filed by Plaintiff Darryl Riser (ECF Nos. 35; 36; 37; 39; 40; 41; 43; 49).[1] The Court has reviewed the record and files herein, and is fully informed. For the reasons discussed below: Defendants Motion (ECF No. 30) is denied; Plaintiff's Motion to Strike (ECF No. 35), Motion to Compel Answer (ECF No. 36), Motion for More Definite Statement (ECF No. 39), and Motion to Compel Response (ECF No. 40) are denied as moot; Plaintiffs Motion for Entry of Default (ECF No. 37), Motion to Sever (ECF No. 41), Motion for Recusal (ECF No. 43), and Motion to Appoint Pro Bono Counsel (ECF No. 49) are denied; and Plaintiff's Motion to Stay (ECF No. 49) is granted in part.


         A. Defendant's Motion to Dismiss; for More Definite Statement; to Strike (ECF No. 30)

         Defendants move the Court to enter an order dismissing Plaintiff's Amended Complaint for failure to provide a short and concise statement. ECF No. 30 at 2-8. In the alternative, Defendants request the Court enter an order requiring Plaintiff to make a more definite statement and strike the redundant material and attached exhibits. ECF No. 30.

         As a pro se litigant, the standards for a complaint are relaxed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). While Plaintiff's complaint is redundant and extensive, this is not enough to simply dismiss the complaint. Rather, a more reasonable avenue of relief is the request for a more definite statement, but that too is not necessary because Defendant has clearly listed fourteen claims in the Amended Complaint. ECF No. 18 at 10-57. Plaintiff has represented these are the only claims he is pursuing at this time, see ECF No. 41, although he has signaled a future intent to add related claims, see ECF No. 49. The allegations in the Amended Complaint are not so vague or ambiguous that Defendants cannot reasonably be required to frame a responsive pleading, as required in Federal Rule of Civil Procedure 12(e). See ECF No. 18 at 10-53.

         Defendants also request the Court strike redundant material and the exhibits attached to Plaintiff's Amended Complaint. While the Amended Complaint is certainly redundant, the Court sees no material benefit in either striking portions of the Amended Complaint or the attached exhibits.

         B. Plaintiff's Motion to Strike Defendant's Motion (ECF No. 35)

         Plaintiff requests the Court strike Defendants Motion to Dismiss or for a More Definite Statement and to Strike at ECF No. 30. ECF No. 35. The request is denied as moot given the Court is denying Defendants' Motion (ECF No. 30).

         C. Plaintiff's motion to Compel Defendants to Answer Amended Complaint (ECF No. 36)

         Although Plaintiff submitted a Motion to Compel Defendants to Answer Plaintiff's Amended Complaint (ECF No. 36), Plaintiff later submitted a Motion to Stay (ECF No. 39), discussed below, in which Plaintiff states his intention to request leave to file a second amended complaint that will include related state claims. As discussed below, the Court is granting Plaintiff's motion to stay in part to allow Plaintiff to make such a request before requiring Defendants to answer or otherwise plead. As such, Plaintiff's Motion to Compel (ECF No. 36) is denied as moot.[2]

         D. Plaintiff's Motion for Entry of Default (ECF No. 37)

         Plaintiff moves for an entry of default, arguing Defendants have failed to plead or otherwise defend the action. ECF No. 37. Pursuant to Federal Rule of Civil Procedure 55, the clerk may only enter the party's default when the party has failed to plead or otherwise defend. Here, Defendants have appeared by filing a timely Motion to Dismiss (ECF No. 30) and have otherwise evidenced their intent to defend the action by responding to pending motions.

         Most notably, Defendants are not tardy in filing an answer. Federal Rule of Civil Procedure 12(e) specifically gives a party the option to request a more definite statement “before interposing a responsive pleading.” Entry of Default is thus not proper and the Motion (ECF No. 37) requesting such is denied. See Wilson v. Moore & Assocs., Inc., 564 F.2d 366, 369 (9th Cir. 1977).

         E. Plaintiff's Motion for More Definite Statement (ECF No. 39)

         Plaintiff's request for a more definite statement as to Defendants' Motion to Dismiss, for a More Definite Statement, and to Strike filed at ECF No. 30 is denied as moot.

         F. Plaintiff's Motion to Compel Answer to Plaintiff's Summary Judgment (ECF No. 40)

         Plaintiff moves the Court to compel Defendants to Answer Plaintiff's Motion for Summary Judgment. ECF No. 40 at 1. Defendants filed timely responses to each of Plaintiff's Motions for Summary Judgment (ECF Nos. 31; 32; 33) on June 13, 2018. See ECF Nos. 50; 51; 52. Plaintiff's Motion is thus denied as premature and moot.

         G. Plaintiff's Request to Sever (ECF No. 41)

         Plaintiff requests the Court sever Plaintiff's fourteen claims against the four defendants according to the basis for jurisdiction. ECF No. 41. Plaintiff argues granting the motion to sever claims one through eight from claims nine to fourteen is proper because the claims involve different defendants, different transactions, and different occurrences. ECF No. 41 at 3. Absent the bald assertion that the claims involve separate transactions and occurrences, Plaintiff does not explain how this would further judicial economy, and, at first blush, all the claims appear to be based significantly on the same universe of underlying facts. In such circumstances, and without any further explanation by Plaintiff as to how severing the case would promote judicial economy, the Motion (ECF No. 41) must be denied at this time.

         H. Plaintiff's Motion for Recusal (ECF No. 43) [3]

         Pursuant to 28 U.S.C. § 455, a district court judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). For example, the judge must disqualify himself if “he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1); United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (citation omitted) (section 455(b)(1) “simply provides a specific example of a situation in which a judge's ‘impartiality might reasonably be questioned' pursuant to section 455(a).”). Judicial impartiality is presumed. First Interstate Bank of Arizona, N.A. v. Murphy, Weir & Butler, 210 F.3d 983, 987 (9th Cir. 2000). A party has a “substantial burden” in demonstrating otherwise. Fletcher v. Conoco Pipe Line Co., 323 F.3d 661, 664 (8th Cir. 2003); In re McCarthey, 368 F.3d 1266, 1269 (10th Cir. 2004). A judge has “as strong a duty to sit when there is no legitimate reason to recuse as he does to recuse when the law and facts require.” Clemens v. U.S. Dist. Court for Cent. Dist. of California, 428 F.3d 1175, 1179 (9th Cir. 2005) (citation omitted).

         The test for sections 455(a) and 455(b)(1) is “whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)).

         Plaintiff submitted the Motion for Recusal based on the presiding judge's alleged bias. Plaintiff bases his request on the following allegations:

1. Judge Rice falsely stated Plaintiff was proceeding in forma pauperis. ECF No. 43 at 2, 5, ...

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