Bauerle v. U.S. Dep't of Health & Human Servs.

PATRICIA BAUERLE, Plaintiff, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.

No. CIV 12-532-TUC-CKJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

DATED: July 22, 2014

ORDER

Pending before the Court are the Motion to Dismiss for Failure to State a Claim (Doc. 98) filed by Northwest Hospital ("NH"), the Motion to Dismiss (Doc. 99) filed by University Medical Center ("UMC"), the Motion for Joinder (Doc. 100) filed by UMC, the Motion to Dismiss Case (Doc. 101) filed by Sonora Behavioral Health Hospital ("SBHH"), the Motion to Dismiss Case (Doc. 102) filed by Corondelet Health Network ("CHN"), the Motion to Dismiss for Failure to State a Claim (Doc. 117) filed by Community Partnership of Southern Arizona ("CPSA"), and the Motion to Dismiss for Failure to State a Claim (Doc. 123) filed by the State of Arizona ("the State"), the Arizona Department of Health Services ("ADHS"), the Office of Administrative Hearings ("AOAH"), and the Pima County Superior Court ("Superior Court") (collectively, "State Defendants"). Also pending before the Court are the Motions for Extension of Time (Docs. 114 and 119) filed by Plaintiff Patricia Bauerle ("Bauerle"). Oral argument has been requested. Bauerle objects to the Court setting this matter for oral argument. The Court declines to set this matter for oral argument.

I. Procedural Background

On July 16, 2012, Bauerle filed a Complaint alleging civil rights claims. While issues were pending before the Ninth Circuit Court of Appeals, this matter was reassigned to this Court.

On October 24, 2012, Bauerle filed an Amended Complaint in this action. Following the issuance of a mandate by the appellate court on June 19, 2013, Defendants filed motions to dismiss. On December 18, 2013, this Court dismissed with prejudice the Federal Defendants from this action, dismissed with prejudice the State Defendants Superior Court, and AOAH from this action, dismissed with prejudice the § 1983 claims against the ADHS, dismissed with leave to amend the ADA claims against State Defendant ADHS, dismissed with prejudice the § 1983 claims against CPSA, UMC, NH, SBHH, and CHN, and dismissed with leave to amend the ADA claims against CPSA, UMC, NH, SBHH, and CHN.

On January 16, 2014, Bauerle filed an Objection to parts of the Court's December 18, 2013, Order (Doc. 93) and filed a Second Amended Complaint ("SAC") (Doc. 94). Bauerle alleges claims against the U.S. Department of Health and Human Services ("USHHS"), the ADHS, the CPSA, the University Physicians Hospital at Kino Campus (now known as UMC-South Campus), NH, SBHH, CHN, the Ninth Circuit Court of Appeals ("Ninth Circuit"), the Office of the U.S. Attorney General ("USAG"), the Federal District Court, the Superior Court, the AOAH, CODAC Behavioral Services ("CODAC"), and Federal District Judge Cynthia K. Jorgenson.

Defendants have filed motions to dismiss.

II. Naming of Federal District Judge Cynthia K. Jorgenson as a Defendant

The Court accepts this as Bauerle naming this Court, the Hon. Cindy K. Jorgenson, as a Defendant. Bauerle alleges the Federal District Court under Judge Jorgenson acted egregiously in 04CV00479-CKJ by giving Bauerle limited time to respond to the Court's consideration of the Rooker-Feldman Doctrine, ruled against Bauerle even though theappellate court agreed the doctrine did not apply, required an unnecessary hearing, and contacted and waited for opposing counsel to appear at the hearing. Bauerle further alleges that, in this case, the Court ordered Bauerle to neither include nor refer to any previous averments in any SAC.

Because Bauerle has named this Court as a defendant, the Court finds it appropriate to consider whether recusal is appropriate.¹ Recusal is appropriate under the circumstances set forth in 28 U.S.C. 455; see also 28 U.S.C. § 144. 28 U.S.C. § 455 requires that a judge recuse herself in any proceeding in which her impartiality might reasonably be questioned. A recusal is appropriate where a reasonable person with knowledge of all the facts would conclude that a judge's impartiality might reasonable be questioned. Yagman v. Republic Ins., 987 F.2d 622 (9th Cir. 1993); United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997) (the standard for disqualification is the same under both 28 U.S.C. §§ 144 and 455). Moreover, just as the Court has a duty to recuse itself when appropriate, the Court has a duty not to recuse itself if it is not appropriate. United States v. Burger, 964 F.2d 1065 (10th Cir. 1992); see also United States v. Sierra Pacific Ind., 759 F.Supp.2d 1198 (E.D.Cal. 2010).

Additionally, the source of any alleged bias must be extrajudicial. Liteky v. United States, 510 U.S. 540, 544-56 (1994). Judicial bias or prejudice formed during current or prior proceedings is an insufficient basis for recusal unless the judge's actions "display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. at 541. Judicial rulings will support a motion for recusal only "in the rarest of circumstances." Id. at 555; United States v. Chischilly, 30 F.3d 1144, 1149 (9th Cir.1994); see also, United States v. Studley, 783 F.2d 934 (9th Cir. 1985) (a judge's prior adverse ruling is not sufficient causefor recusal).

Here, it appears this Court's rulings are the basis for being named as a defendant. The Court finds there is no judicial bias or prejudice that displays a deep-seated favoritism or antagonism that would make fair judgment impossible, let alone any judicial bias or prejudice. Recusal is not appropriate. Studley.

As to any claims against this Court, "[j]udges are immune from damage actions for judicial acts taken within the jurisdiction of their courts." Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986); see also Franceschi v. Schwartz, 57 F.3d 828, 830-31 (9th Cir.1995) (in § 1983 case, noting that there is judicial immunity from damages for judicial acts, i.e., functions normally performed by a judge). This is to assure that judges may exercise their functions with independence and without fear of consequences. See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 20 L.Ed. 646 (1872); Randall v. Brigham, 74 U.S. 523 (1868). However, a "judge lacks immunity where he acts in the 'clear absence of all jurisdiction' or performs an act that is not 'judicial' in nature. Ashelman, 793 F.2d at 1075, citations omitted. Judicial immunity attaches even if the judge is accused of acting maliciously and corruptly, Pierson v. Ray, 386 U.S. 547, 554 (1967), or of making grave errors of law or procedure, Schucker v. Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988).

In determining whether a judge acted within his jurisdiction, "courts focus on whether the judge was acting clearly beyond the scope of subject matter jurisdiction in contrast to personal jurisdiction." Id. at 1076. "Where not clearly lacking subject matter jurisdiction, a judge is entitled to immunity even if there was no personal jurisdiction over the complaining party." Id. This Court was acting with the scope of subject matter jurisdiction and performing acts that are judicial in nature. The Court finds Bauerle's claims against undersigned are precluded by judicial immunity. The claims against this Court will be dismissed from this action.

III. Bauerle's Motions for Extensions of Time (Docs. 114 and 119)

Bauerle requests additional time to file responses. Bauerle has submitted her responses. The Court will grant the requests and considers Bauerle's responses herein.

IV. Short and Plain Statement Pleader is Entitled to Relief

In its December 18, 2013, Order, the Court advised Bauerle of the requirements of a complaint, including that it is to contain a "short and plain statement of the claim showing that the pleader is entitled to relief[,]" Fed.R.Civ.P. 8(a), and that conclusory statements do not adequately state a claim. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Bauerle was advised that a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (factual allegations must raise a right to relief above the speculative level); see also Noatak v. Hoffman, 896 F.2d 1157, 1166 (9th Cir.1990) (Kozinski, J. dissenting) (majority opinion rev'd 501 U.S. 775 (1991)) ("To state a federal claim, it is not enough to invoke a constitutional provision or to come up with a catalogue of federal statutes allegedly implicated. Rather, as the Supreme Court has repeatedly admonished, it is necessary to state a claim that is substantial."); Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) (for a complaint to survive a motion to dismiss, the non-conclusory "factual content," and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief).

The Court also advised Bauerle that the Court is not to serve as an advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in attempting to decipher a complaint. See e.g., Pliler v. Ford, 542 U.S. 225, 231 (2004) ("District judges have no obligation to act as counsel or paralegal to pro se litigants" because this would undermine district judges' role as impartial decisionmakers.).

V. Motion to Dismiss for Failure to State a Claim filed by NH (Doc. 98)²

NH requests the SAC be dismissed for failure to state a claim for which relief can be granted. Additionally, NH requests, if the Court permits Bauerle to file a Third Amended Complaint, this motion be treated as a Motion for More Definite Statement.

NH asserts the only claim that Bauerle appears to be making against Northwest is a §1983 claim. As the Court ordered Bauerle's § 1983 claims dismissed with prejudice, NH asserts the doctrine of res judicata, or claim preclusion, bars Bauerle from pursuing this claim against NH. In its December 18, 2013, Order, the Court determined that Bauerle's claims that NH (and other Defendants) violated her...