United States District Court, E.D. Washington
DARRYL W. RISER, Plaintiff,
WASHINGTON STATE UNIVERSITY, DON HOLBROOK, BRIAN ALLAN DIXON, and RANDI N. CROYLE, Defendants.
ORDER ON PENDING MOTIONS
O. Rice Chief United States District Judge
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;
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
Defendant's Motion to Dismiss; for More Definite
Statement; to Strike (ECF No. 30)
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.
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.
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.
Plaintiff's Motion to Strike Defendant's
Motion (ECF No. 35)
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).
Plaintiff's motion to Compel Defendants to Answer
Amended Complaint (ECF No. 36)
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
Plaintiff's Motion for Entry of Default (ECF No.
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.
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.
Plaintiff's Motion for More Definite Statement
(ECF No. 39)
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
Plaintiff's Motion to Compel Answer to
Plaintiff's Summary Judgment (ECF No. 40)
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.
Plaintiff's Request to Sever (ECF No.
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.
Plaintiff's Motion for Recusal (ECF No.
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).
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)).
submitted the Motion for Recusal based on the presiding
judge's alleged bias. Plaintiff bases his request on the
1. Judge Rice falsely stated Plaintiff was proceeding in
forma pauperis. ECF No. 43 at 2, 5, ...