You are on page 1of 22

e- ti r I I

I IL.L*L;

1 OLIVER B. MITCHELL III


622 WAI-L STREET
2
LOS ANGELES, CALIFORNIA ?$t? Jii:_ 3 t &ffi *: $ I

t': ': 1..' :i'f. * .,:t i"T r.1l r-.,l.\1


3 90014 i/-, .i,i r:. I -, I !,.- I

(s62) 7Le-3872 i1-r'i:iii!i- ti:rT. iJf riii.IF.


LriS i.111:i_iii
4
IN PRO PER R'i: - ,
5

6 UNITED STATES DISTRICT COURT


1
CENTRAL DISTRICT OF CALIFORNIA
B

OLIVER B. MITCHELL III, cv-13-6030-oDw (AS)


9 Plaintiff,
10
MOTION TO DISQUALIFY
vs. MAGISTRATE JUDGE AND
11 MEMORANDUM OF'LAW IN
LINITED STATES DEPARTMENT OF SUPPORT THEREOF
L2
VETERANS AFFAIRS, et a1.,
13 De

l4
INTRODUCTION
15
P1aintiff, Oliver B. Mitchell III, hereby moves that Magistrate Judge Alka Sagar,
16
pursuant to 28 U.S.C. 144 ar.d 28 U.S.C. 455, to immediately disqualifv herself from all
l1
further proceedings in this manner. Judge Sagar has engaged in conduct that is prejudicial to
18
the effective and expeditious administration of the business of the courts, undermines public
t9
confidence in the integrity andimpartiality of the judiciary, and creates a strong appearance
20
of impropriety. This motion arises primarily from Judge Sagar's lack of due diligence and
2l
selectively applying the laws and rules of In Forma Pauperis.
22

23
The Judicial Conduct ond Disability Act allows "[q]ny person alleging that o judge hos engaged in conduct
24 prejudiciol to the effective and expeditious administration of the business of the courts" to file a comploint
against the judge. See 28 U.S.C. $ i51(a). To implement thot Act, os amended, the Judiciql Conference of the
25
United Stotes promulgated the Rules for Judiciol-Conduct snd Judicial-Disability Proceedings. Rule j(h)
26 defines "cognizoble misconduct" os including "conduct prejudicial to the effective and expeditious
administration of the business of the courts" qnd "canduct accurring outside the performance of official
21

2B

I
NOTICE TO THE COURT CASE 2:13cv6030
I if the conduct might have s prejudicial effect on the administrotion of the business of the courts, includinq a
substantial and widespread lowering of public canfidence in the courts among reasonable people."
2

a
J Additionally, Judge Sagar demonstrated extreme disrespect to the Plaintiff by failing
4 to maintain and observe the "high standards of conduct" required of federal judges by

5 failing to inappropriately apply the law.


6 Judge Sagar's orders and conduct violated 28 U.S.C. $ 351 and the Code of Conduct

1 for United States Judges.

9
Canon 2 of the Code ol Conduct for United States Judges provides: "A ludge Should Avoid lmpropriety and the
Appeorance of lmpropriety in All Activities." The Commentary to Conon 24 states that "An appearonce of
10 impropriety occurs when reqsonoble minds, with knowledge of all the relevant circumstonces . . . would
11 conclude thot the judge's honesty, integrity, impartiality, temperament, or fitness to serve as a judge is
impoired. Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges."
l2 (Emphosis added.) Canon 3A provides that a "judge should be patient, dignified, respectful, ond courteous"

13 all persons "with whom the judge deols in an official copacity." (Emphasis added.)

74 See Code of Conduct for United States Judges, Canon 1 ('. . . A judge should maintain and enforce high
stondards of conduct ondshou!d personally observe those standords[.]").
15
The ludiciol Conference's Cammentary on Rule 3 stqtes thqt the Cade of Conduct far United States ludges
L6
moy be "informative" in determining whether a judge has engaged in conduct "prejudiciolto the effective
L1 expeditious administratian of the business of the courts." The Code "is designed to provide guidonce to judges
.. . ," and federaljudicial discipline decisions hove cited and relied on the Canons. See, e.9., ln re Comploint
18
Judiciol Misconduct (Paine), 664 F.3d j32, 335 (U.5. Judicial Conference 201L) (stating thot the Judiciol
19 Conference adopted the Code to "provide standards of conduct for application in judicial-conduct ond judicisl-
disciplinary proceedings brought pursuant to the Act.
20

21 Canon 2 of the Code of Conduct for United States Judges provides that "a judge
22 should avoid impropriety and the appearance of impropriety in all activities." (Emphasis
23 added.) Canon 2,4. is entitled "Respect for Law." It provides that "A judge should respect an
24 comply with the law and should act at all times in a manner that promotes public confidence
25 in the integrity and impartiality of the judiciary." (Emphasis added.) This rule is "critical-
26 the judiciary's ability to decide eases efficiently and effectively would be severely impaired,

21 and public confidence in the courts would be undermined, if litigants had reason to suspect
2B

2
NOTICE TO THE COURT CASE 2:13cv6030
1
judicial bias. In other words, to perform its high function in the best way'Justice must satis
2
the appearance ofjustice."
3

4
See Hon. Corl E. Stewort, Abuse of Power and Judicial Misconduct: A Reflection on Contemporary Ethical
/ssues Facing Judges, 1 U. St. Thomos L.J. 464, 477 (lssue no. 1, 2003) ("A hallmark of the judiciary has been i
5
historical posture of neutrality and impartiality toword litigants and the disputes they bring to the courts for
6 resolutian).
1
Canon 3 of the Code of Conduct of United States Judges provides that "a judge should
8
perform the duties of the office fairly, impartially, and diligently." (Emphasis added.) Canon
B-
3,{ (3) provides that"la]judge should be patient, dignified, respectful, and courteous" to all
10
persons "with whom the judge deals in an official capaci\r." The Commentary to Canon 34
11
states that "[t]he duty to be respectful includes the responsibility to avoid comment or
72
behavior that could be interpreted as harassment, prejudice or bias."
13
The statements and conduct of Judge Sagar, described below, evince a dramatic and
74
appalling lack of "fairness" afld "!ISIAII!3I!!y."
15
BACKGROUND
L6
On August 16,2013, the Plaintiff lodged a civil rights complaint pursuant to 42 U.S.C
l1
1983 @:pf!!gners) and was assigned Case No. CV-13-6030.
18
On September 26, 2013, the Court filed and accepted the Plaintiffs civil
19
complaint (non-prisoners) and was assigned Case No. CV-13-6030-ODW-CWx.
20
On December 12,2013, Federal District Judge Otis D. Wright issued "Order Vacatin
27 Reference to Magistrate Judge" saying "Reference to the discovery Magistrate Judge i
22 hereby vacated. The above case is referred to a Magistrate Judge pursuant to General Ord
23 05-07 for a Report and Recommendation. [Docket No. i2]
24 While the Plaintiff respects the Courts opinion the Plaintiff disagrees with the Orde
25 Vacating Counsel. Most if not all 194 cases are denied the ri ithhold consent t
26 have their case heard by a U.S. District Judge. A11 194 cases are denied a
27 discoverv phase. Most if not all 194 cases are forced into mandatory alternative dispu
10

3
NOTICE TO THE COURT CASE 2:13cv6030
1
resolution at which time even more constitutional rights can be stripped awav.
2
On December 17, 2A13, Magistrate Judge Carla Woehrle issued "Civil Minutes
3
General" saying "Because Plaintiff is seeking to proceed in forma pauperis his complaint i
4
subject to screening under 28 U.S.C. 1915(e) (2). If and when the court determines that th
5 complaint passes screening, the court will issue orders regarding marshal's service on its
6 motion." [Docket No. 16]
'1
On January 21, 2014, the Court issued "Memorandum and Order Dismiss
B Complaint with Leave to Amend" saying "Plaintiff Oliver B. Mitchell III opened this acti
9 with a request to proceed without prepayment of the filing fee dated and filed August 16

10 2013. [Docket No. 1.] to file was granted and Plaintiffs Complaint was fiI
Leave
11 September 26, 2013. [Docket No. 3.] Plaintiff is appearing pro se and seeking to proceed i
72 lorma pauperis, on a civil rights complaint under 42 U.S.C. $ 1983. For reasons stated below

13 the complaint is dismissed with leave to amend. Complain intiffs are sub
t4 to the court's sua snonte review under orovi tisation Reform Act
15 1995 ("PLRA"), Pub. L. No. lA4-134,110 Stat. l32l (1996). The court shall dismiss such
76 complaint, at arry time, if the court finds that it (1) is frivolous or malicious, (2) fails to state

L1
claim on which relief may be granted, or (3) seeks monetary relief from a defendant immu

1B
from such relief. A claim is frivolous when it is without basis in law or fact, and 'malicious

19
when it is filed with the intention or desire to harm another. Failure to state a claim has

20
same meaning on PLRA review that it has in review of a motion to dismiss under Fed. R
Civ. P. 12(bX6). Plaintiff makes lengthy but vague allegations that the VA and V
2t
employees have harassed him in numerous ways, violating his federal civil rights under 4
22
U.S.C. $ 1983 and other statutes. He seeks monetary damages. Here, Plaintiffs $ 198
23
claims are asserted against a federal agency and three of its employees. However, a federa
24
agency and federal employees acting under color of federal law are not persons acting
25
color of state law who may be sued under 42U.5.C. $ 1983. Accordinglv, all of PIai
26
Q 1-983 claims are subiect to dismissal on PLRA screening. Plaintiff has made allegation
27
about individual acts by Defendant Holliday, but his factual allegations, as they stand, do
2B

4
NOTICE TO THE COURT CASE 2:13cv6030
1
show that Defendant Holliday violated any of his constitutional rights. On the other hand
2
Plaintiff misht be able successfullv to amend his comolaint. consistentlv with his factua
3
alleeations, to state a Bivens claim asainst Defendant Holliday. In light of the li
4
policy toward amendment of pro se pleadings, Plaintiff will be given leave to amend hi
5 complaint to state a Bivens claim, for violation of a federal constitutional right, agai
6 Defendant Holliday in an individual capacity only. If Plaintiff files an amended complain
1 the court will issue further orders as appropriate; if not, the magistrate judge will recommen
B that this action be dismissed, without prejudice, for failure to prosecute or to comply wi
9 court orders, as weil as for the reasons stated above." [Docket No. 24]
10 On March 12,2014, the Plaintiff filed First Amended complaint. [Docket No. 30]

11 On April 2, 2014, the Court issued "Civil Minutes-General" saying "Plaintiffs Fi


l2 Amended complaint was filed on March 12,2014. The court will screen further orders

13 appropriate. Plaintiff will be advised by mail of all further proceedings. Plaintiff is remin

74 to inform the court of any change in his mailing address." [Docket No. 32]

15 On April 14,2A14, the Plaintiff filed "Notice to the Court" saying "Complaints such

76 plaintiffs are not subiect to the Courts sua sponte review under provisions of the PLRA o

L1
1995. The PLRA is a group of statutory provisions, codified in scattered sections of Title 1

18
28, and 42 of the United States Code designed to impose strict conditions on court filings b

L9
incarcerated persons, especially those filing suit via in forma pauperis (poor person) status.'

20 [Docket No. 33]


On November 18, 2A14, the Court issued "Memorandum and Order Dismissing Fi
2T
Amended Complaint with Leave to Amend" saying "Plaintiff s First Amended Complain
22
("FAC") was flled March 12,2014 [Docket No. 30], and is dismissed, with leave to amend
23
for reasons stated below. Complaints such as Plaintiff s are subject to the court's sua spont
24
review under provisions of the Prison Litigation Reform Act of 1995 ("PLRA"), Pub. L. No
25
lA4-L34, 1 10 Stat. l32l (1996). Most of Plaintiffls remaining claims appear to
26

21
by the doctrine of federal sovereisn immunity (such as a claim under the Rehabilitati
2B

5
NOTICE TO THE COURT CASE 2:13cv6030
Act). It is not clear what. if any, cognizable claims Plaintiff could state on amendment
however, in light of the liberal policy on amending pro se pleadings, he will be given leave t
amend his complaint one more time. He may, for example, a claim unde
Title VII. [Docket No. 36]
On December 22, 2014, the Plaintiff filed Second Amended complaint. [Docket No
401

On January 6, 2015, the Court issued "Civil Minutes-General" saying "Plaintiff


Second Amended Complaint ("SAC") was filed on December 22,2014. [Docket no. 40.] I
the SAC, Plaintiff asserts a claim for violation of Titie VII of the Civil fughts Act of 1964, as

amended, 42 U.S.C. $$ 2000e et seq., against the Secretary of the United States Departmen

of Veterans Affairs. The court ORDERS as follows in light of the SAC: l.By filing the SA
Plaintiff has effectively dismissed the previously named Defendants not named in the SAC
the United States Department of Veterans Affairs, Donna Beiter, and Lisa K. Holliday.
clerk shall correct the docket to show' that this action has been terminated with respect
those Defendants. 2. Under Fed. R. Civ. P. Rule 25(d), Robert A. McDonald, the cuffen
Secretary of Veterans Affairs, is substituted as a Defendant in place of former Secretary Eri

K. Shinseki. 3. Plaintiff is granted leave to proceed in forma pauperis. 4.By separate order
the court will direct the United States Marshal to serve the summons and complaint
Secretary McDonald in his official capacity only." [Docket No. 41]
On November 24, 20L5, the Court issued 'oMemorandum and Order Dismissin
Second Amended Complaint with Leave to Amend" saying "Complaints such as Plaintiff
are subject to the court's sua sponte review under provisions of the Prison Litigation Refl

Act of 1995 ("PLRA"), Pub. L. No. 104-134, 110 Stat. l32l (1996). See 28 U.S.C.-
19i5A(a)... The SAC Fails to Comply With the Federal Rules of Civil Procedure. T
pleading standard of Federal Rule of Civil Procedure 8(a)(2) requires a "short and plai
statement of the claim showing that the pleader is entitled to relief." Plaintiff s SAC does
contain a "short and plain statement of the claim showing that [plaintiff] is entitled to relief.
Fed. R. Civ. P. 8(aX2). Instead, the SAC contains over 120 factual allegations arranged in

6
NOTICE TO THE COLIRT CASE 2:13cv6030
1
lengthy narrative of incidents that occurred while Plaintiff was an employee for the Medica
2
Care Group at the VA Medical Center in Los Angeles, an agency of the Department o
3
Veterans Affairs. (SAC 10-118.) Plaintiffs allegations failto identiff each individua
'1T1T

4
claim and the incidents giving rise to each claim. The SAC lumps all of Plaintif?s
tr
-) allegations together in chronological order regardless of their relation to a particular claim
6 Plaintiff must list his factual allegations according to the claims that he is asserting.
1 Court is not required to sort through Plaintiff s allegations in search of a viable claim
B Independent Towers of Wash. V. Wash., 350 F.3d 925,929 (9th Cir. 2003); see Greenw
9 v. Fed. Aviation Admin., 28 F.3d 971,977 (9th Cir. 1994). Plaintiff s failure to plainly
10 succinctly provide the defendant with fair notice of the bases for his allegations violates Ru
11 8. See Cafasso, 637 F.3d at 1059; see also American Ass'n of Naturopathic Physicians v
l2 Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000) ("[A] pro se litigant is not excused fi

13 knowing the most basic pleading requirements."). 1. The SAC is dismissed with leave t
74 amend. 2. V/ithin thirry (30) days of the filing of this Memorandum and Order, Plaintiff

15 file a "Third Amended Complaint" which corrects the defects discussed above and compli
L6 with these requirements: (a) The "Third Amended Complaint" must bear the present
11
number "CV 13-6030-ODW (CW)." (b) It must be complete in itself and may not incorporat

LO
by reference any part of any prior complaint. (c) Plaintiff may not use o'et al." in the caption

19
but must clearly name each defendant against whom a claim is stated in the Third Am

2a
Complaint. (The clerk uses the caption to make sure that defendants are coffectly listed o
the docket.) (d) Plaintiff mav not add new parties without the court's permission. 3. I
27

22
Plaintiff files an amended complaint, the court will issue further orders as appropriate; if
aa
the magistrate judge will recommend that this action be dismissed, without prejudice,
L)

failure to prosecute or to comply with court orders, as well as for the reasons stated above.
24
IDOCKET No. 541
25
On April 14, 2A16, the Court issued "Notice of Reassignment of Case Due t
z6
Unavailability of Judicial Officer" saying "The Magistrate Judge to whom the above-entit
27
case was previously assigned is no longer available. YOU ARE HEREBY NOTIFIED that
2B

7
NOTICE TO THE COURT CASE 2:13cv6030
1
pursuant to directive of the Chief U. S. District JudgeiMagistrate Judge and in
2
with the rules of this Court, the above-entitled case has been returned to the Clerk for di
3
reassignment. Accordingly, this case has been reassigned to: Hon. Alka Sagar, Magi
4
Judge for: all proceedings in accordance with General Order 05-07. Please substitute
5 initials of the newly assigned Magistrate Judge so that the new case number will read
6 CV13-06030 ODW (AS). This is very important because documents are routed by th
1 initials. [Docket No. 58]
B On May 31, 2A16, the Court issued "Civil- Minutes General" saying "On Decembe
9 22, 2414, Plaintiff Oliver B. Mitchell III ("Plaintiff') filed a pro se Second
10 Complaint ("SAC") asserting a claim for violation of Title VII of the Civil Rights Act o

11 1964, as amended, 42 U.S.C. $$ 2000e et. Seq., against the Secretary of the [Jnited Stat

72 Department of Veteran's Affairs. (Docket No. 40). On March 23,2015, Defendant filed
13 motion to dismiss the SAC for failure to state a claim, or in the alternative, for a more defini

74 statement. (Docket No. 47). On November 24,2015, the Court issued an Order dismissi
15 the SAC with leave to amend. (Docket No. 54). The Court's Order set forth the deficienci

L6 with Plaintiff s SAC and directed Plaintiff to file a Third Amended Complaint no later

L1
thirty (30) days from the Court's Order or December 28,2016.Id. at 10. On December 28

18
2015, Plaintiff filed aNotice and Request for an Extension of Time, seeking an extension o

t9 time, 'oto and including January 25,2A16, within which to file a 'Third Amended Complaint'

2A
and respond to the Court's Memorandum and Order dismissing the Second Ame

27
Complaint (SAC) with leave to amend." (Docket No. 55). On January 4,2016, the Cou
issued an Order granting Plaintiffs request and ordering Plaintiff to file a Third Ame
22
Complaint by January 25,2016. (Docket No. 57). On April 14,2016, the case was assi
23
to this Court and a Notice of Assignment was mailed to Plaintiff at the address listed on th
24
Complaint. (Docket Entry No. 58). To date, Plaintiff has failed to file a Third Amend
25
Complaint or communicate with the Court in any way. Accordingly, Plaintiff is ORDE
25
TO SHOW CAUSE, in writing, no later than Monday, June 2A,2016, why this action shoul
21
not be dismissed with prejudice for failure to prosecute and failure to obey a court order
2B

8
NOTICE TO THE COURT CASE 2:13cv6030
1
This Order will be discharged upon the filing of a Third Amended Complaint that cures
2
deficiencies in the last pleading, or upon the filing of a declaration under penalty of perj
a
J
stating why Plaintiff is unable to file a Third Amended Complaint. If Plaintiff no lon
4
wishes to pursue this action, he may request a voluntary dismissal pursuant to Federal Rule o
5 Civil Procedure a\a). A notice of dismissal form is attached for Plaintiff s convenience
6 Plaintiff is warned that a failure to timely respond to this Order will result in
'/
recommendation that this action be dismissed with prejudice under Federal Rule of Civi
B Procedure 41(b) for failure to prosecute and obey court orders." [Docket No. 60]
9 On June 30,2416, the Court issued "Civil- Minutes General" saying "On May 31

10 2016, the Court issued an Order to Show Cause (Docket Entry No. 60) and ordered plainti

11 to respond to later than June 20,2016, why this action should not be dismissed with prejudi

t2 for failure to prosecute and failure to obey a Court order. On June 7,2016 the Court orde

13 that plaintiff notit, the Court of his current 62). On June 23


address (Docket Entry No.

74 2016, plaintiff flrled a Notice of Change of Address (Docket Entry No. 64). Accordingly
15 Plaintiff is ORDERED TO SHOV/ CAUSE, within fourteen (14) days of the date of thi
L6 Order, why this action should not be dismissed with prejudice for failure to prosecute

l1 failure to obey a court order. This Order will be discharged upon the f,rling of a Thi
1B
Amended Complaint that cures the deficiencies in the last pleading, or upon the filing of
declaration under penalty of perjury stating why Plaintiff is unable to file a Third Amend
19
Complaint. A copy of the May 31,2016 minute order is attached." [Docket No. 66]
20
DISCUSSION
27
On April 14,2A16, due to the unavailability of a judicial officer, the Deputy Clerk for
22
the Central District Court in California reassigned this case to Magistrate Judge Alka Sagar..
23
See Docket Entry l/o. 58. However, Magistrate Judge Sagar's exercise of the jurisdiction is
24
only permitted if all parties involved have voluntarily consented. After this case was filed,
25
the Clerk of the Court failed to send the appropriate notice and consent form as provided by
zo
the General Order. The consent form were to afford each party an initial opportunity to
27
consent to having a Magistrate Judge assume complete jurisdiction over this case, including
2B

9
NOTICE TO THE COURT CASE 2:13cv6030
1
trial and entry ofjudgment. At that time, each party had an obligation whether to consent to
2
or decline Magistrate Judge jurisdiction as soon as possible.
3
On May 19,2A17, the Plaintiff filed and the Court accepted "Request for
4
Reassignment to a U.S. District Judge." [Docket No. 101] Pursuantto 28 U.S.C. 636 (c) and
5 FRCP 73, amagistrate judge may only assume complete jurisdiction only if the parties
6 consent.
7 Per the Courts General Order 05-07, Page 9,Item 4 states "If a District Judge vacates

B reference to a Magistrate Judge for discovery and instead refers the matter to a Magistrate
I Judge for a report and recommendation, the case shall be randomly assigned to a "new"

10 Magistrate Judge for the report and recomrnendation if no discovery matters were heard by
11 the discovery Magistrate Judge.

L2 In this instance, when on November 7,2013, District Judge Wright vacated reference

13 to Magistrate Judge Carla Woehrle and reassigned to Magistrate Judge Carla Woehrle for a

74 Report and Recommendation, the Court itself committed fraud upon the Court by failing to

15 "randomly assign this case to a new Magistrate Judge."

76 In this instance, when on April 14,2016, the Deputy Clerk failed to reference whether

l'l Magistrate Judge Alka Sagar would conduct discovery or Report and Recommendation in

TO accordance with General Order 05-07, the Court itself committed fraud upon the Court by

19
failing to gain consent to proceed before a Magistrate Judge.
As of July 28,2A17 , there are no notations on the docket reflecting that either the
20
Plaintiff or the Defendants consented to proceed before a Magistrate Judge, nor that the Court
27

)) ever received a form consenting to the jurisdictiot of a Magistrate Judge.

al
A Magistrate Judge can only proceed under 28 U.S.C. 636(c) when all parties consent.
LJ

Additionally, as of July 28,2A17, the Court has failed to respond to the Plaintiffs
24
request for reassignment.
at

28 U.S.C. $ 144, provides:


26
Whenever aparty to any proceedingina district court makes and files a
27
timely and sufficient affidavitthatthe judge before whom the matter is
28

10
NOTICE TO THE COURT CASE 2:13cv6030
L
pending has a personal bias or prejudice either against him or in favor of any
2
adverse party, such judge shall proceed no fuither therein, but another judge
3
shall be assigned to hear such proceeding.
4
28 U.S.C. $ 455 provides:
5 Any justice, judge, or magistrate judge of the United States shall disqualiff
6 himself in any proceeding in which his impartiality might reasonably be
1 questioned.
8 "[I]t is apparent that the two sections are not redundant but are comp1ementary..."
9 United States v. Silba, 624 F .2d 864, 868 (9th Cir. 1980). "[A] movant under section 144

10 must allege facts to convince a reasonable person that bias exists, while under the broader
11 language of section 455,he must show only that a reasonable person 'would harbor doubts

72 about the judge's impartiality."' See Phillips v. Join Legislative Committee on Performance

13 & Expenditure Review, 637 F.2d rc1.4, 1019 (5th Cir. 1981), cert denied, 456 U.S. 960
14 (1982). In the instant case, based upon the declarations attached hereto, a "reasonable

15 person" would be convinced that bias existed and, certainly, that person "would harbor

L6 doubts" about the Court's impartiality.

71
First, the Court has simply denied Mr. Mitchell's pleadings and files without discovery

18
or holding atrial. Rather, the Court continues to violate its own rules while giving the
appearance of bias. Despite the Plaintiffs best efforts to prosecute this case, the Court
L9
continues to issue orders both ambiguous and ultra vires. In fact, the Court has denied the
20
Plaintiff an opportunity to develop the "probably would have made a difference" standard.
2L

Second, Title 28 U.S.C. $ 636(c)(a) states:


22
The court may, for good cause shown on its own motion, or undr extraordi
23
circumstances shown by any party,vacate a reference of a civil matter to a
24
magistrate judge under this subsection.
25
While courts have ruled that adverse rulings against aparty are not'oextraordinary
26
circumstances" for purposes of $ 636(c)(a). See, e.g., Jurado v. Klein Tools, Inc., 755 F.
21
Supp. 368, 37I (D. Kan. 1991). This Court should consider when ruling on the Plaintiffs
2B

11
NOTICE TO THE COLIRT CASE 2:13cv6030
1
motion to vacate consent are issues of undue delay, inconvenience to the court and witnesses,
2 preiudice to the parties, whether the motion is made in good faith or is dilatory and
a
J
contrived, and whether the interests ofjustice would best be served by holding a party to his
4
consent. See Carter y. Sea Land Services, Inc., Bl6 F.2d l0lB, 1021 (5th Cir. l9B7).
5 On December 16, 2A16, the Plaintiff filed and the Court reiected the Plaintiffs "RE:
6 Order To Show Good Cause." See Docket Entry No. 68.l
1 On December2A,2016, the Court issued "Notice of Document Discrepancies" saying
B "Response to Order to Show Cause exceeds 25 pales. No response shall exceed 25 pages in

9 length absent advance leave of Court for good cause shown. (See L.R. 1l-6)." See Docket
10 Entry No. 68.
11 On January 4,20t7, the Plaintiff "Requested Leave to Exceed Page Limit" to refile his

L2 RE: Order to Show Cause. See Docket Entrv No. 70


1a
a -) On January 5,2A17 , the Court denied the Plaintiffs request to exceed page limit say

14 "Plaintiff s request for leave to exceed the page limit and his 100-page proposed response to

15 the Order to Show Cause does not comply with the Court's Order to file a Third Amended

76 Complaint which corrects the defects discussed in the Court's Order dismissing PlaintifPs

L1
SAC with leave to amend. A copy of the Court's November 24,2A15 Order is attached.

1B
Accordingly, Plaintiff s request for leave to exceed page limit is DENIED." See Docket

1() Entry No. 73

An order to show cause, is a type of court order that requires one or more of the parties
20
to a case to justifiz, explain, or prove something to the court. Courts commonly use orders to
2t
show cause when the judge needs more information before deciding whether or not to issue
22

aa
an order requested by one of the parties. The parfy must prepare a response, or'oanswer," to
LJ

the Order to Show Cause, stating why he objects to the issuance of the court order requested
24
in the OSC. This response must be filed with the court clerk, and a copy served on the other
25
party.
26
In this instant action, the Plaintiff asserts that this Court has abused its ability to
21
dismiss actions based on bias and preiudice.
28

t2
NOTICE TO THE COURT CASE 2:13cv6030
1
On February 9,2017, the Plaintiff filed and the Court received but not filed the
2
Plaintiffs "Stipulated Protective Order." This Stipulated Protection Order would maintain the
3
counts and allegations against the same Defendants from the original complaint but would
4
add additional Defendants. Additionally, the Stipulated Protection Order would most likely
5 add additional counts and allegations. The Defendants actions stemming from non-
6 consensual research and experimentation against the Plaintiff is likely to involve trade
1 secrets, customer and pricing lists and other valuable research, development, commercial,

I f,rnancial and technical and/or proprietary information for which special protection is
9 warranted . See Docket Entry No. 77.l
10 On February 1A,2017 , the Court issued "Notice of Document Discrepancies" saying

11 "Stipulated Protective Order, Declaration and Proof of Service; Failure to comply with
t2 material provisions of the sample protective order on the Couft's Procedures and Schedules.

13 Not signed by defense counsel. The document is NOT to be filed, but instead REJECTED,
1-4 and is ORDERED returned to counsel." See Docket Entry No. 77

15 On March 20,2017, the Plaintiff filed and the Court received but not filed the

76 Plaintiffs "Stipulated Protective Order." Per the Courts website, Honorable Alka Sagar,

l1 Judges Procedures, Item #4 states "Stipulated Protective Orders: A11 stipulated protective

18
orders must comply with Rule 26 and the Ninth Circuit's standards for protective orders. A11

proposed protective orders must describe the documents to be protected with particularity.
79
See Riverav.. Nibco Inc., 364 F.3d 1057, 1063 n. 3 (9thCir. 20A4). Therefore, the
20
documents, information, items or materials that are subject to the protective order shall be
2t
described in a meaningful fashion (for example, "personnel records," or "market surveys,"
22
etc.). It is not sufficient to use only conclusory terms such as "confidential or proprietary
23
information." All proposed protective orders must include a statement establishing the
24
requisite good cause. Fohz v. State Farm Mutual Auto Ins. Co., 331 F.3d 1122, 1130 (9th
25
Cir. 20A3) (court's protective order analysis requires examination of good cause) (citing
ZO
Phillips y. Gen. Motors Corp., 307 F.3d 1206, l2l0-l l, (9th Cir. 2002). The Court may only
21
enter a protective order upon a showing of good cause. Kamakana v. City and County of
ZO

l3
NOTICE TO THE COURT CASE 2:13cv6030
1
Honalulu, 447 F.3d I172, 1176 (9th Cir. 2006) (parlies must make a"particularized
2
showing" under Rule 26(c) for court to enter protective order); Make-Wellbon v. Sony
3
Electrics, Inc., 187 F.R.D. 576, 577 (8.D. Wis.,1999) (even stipulated protective orders
4
require good cause showing). Counsel is directed to file a single document entitled Stipulat
5 Protective Order and email a copy in WordPerfect or Microsoft Word to the Court at
6 AS_Chambers@cacd.uscourts.gov. It is not necessary to file a separate Proposed Protective
1 Order. The Court recommends that the parties use the attached form Stipulated Protective
B Order available for download below. Orders & Additional Documents: Stipulated Protective
9 Order Judge Sagar." See Docket Entry No. 82
10 The Plaintiff asserts that the "Stipulated Protective Order" does in fact comply with

11 material provisions as indicated on Magistrate Judge Sagar's profile page located at

72 http:llcacd.uscourts.gov/honorable-alka-sagar. In FACT, the Stipulated Protective Order


13 "contains a combination of information sufficient to establish this case to which the documen

74 relates." The document was considered timely and the Court should have made a

15 determination based on the merits. See Docket Entry No. 82.l

!6 On April 6,20t7, the Plaintiff filed "RE: (IN CHAMBERS) Final Order to Show

77
Cause." See Docket Entry No. 87

18
On April 26, 2017 , the Plaintiff filed and the Court accepted his notice of "withdrawal
consent to any further human subject research" by the defendants. In light of a recent
L9
discovery confirming the non-consensual research, the Plaintiff sent a letter to the appropriate
20
individuals noti$zing them of withdrawal of consent. See Docket No. 92
2l
On May 9,2017, the Plaintiff filed and the Court accepted the Plaintiffs "Notice to the
ZZ
Court" citing "lmmlnenl-danger" saying "The risk of future injury is sufficient to invoke the
23
imminent danger exception. As evinced in the Plaintiffs initial and subsequent amended
24
complaints, the Plaintiff raised several claims of "imminent danger." Here the Plaintiff will
25
demonstrate the defendants actively and intentionally engaged in a "conspiracy to commit
Zf)
murder" as a means of retaliation for whistleblowing." See Docket Entry No. 95
21
This action was filed on August 16,2013 and has been ongoing for 3 years and 1l
2B

t4
NOTICE TO THE COITRT CASE 2:13cv6030
1
months without a motion for discovery or set for trial. The present dispute is the latest in
2
series of disputes between the parties. The procedural posture of this Court to include the
3
Department of Justice and the Defendants has offensively limited the Plaintiffs ability to
4
fairly prosecute this case. In the interim, the Plaintiff seeks production of documents from
5 the Department of Veterans Affairs and ask the Court to grant an additional extension of time
6 See Docket Entry No. 98.
1 On May 17 ,2017 , the Court issued Order "RE: Request..." saying "Plaintiff has not
B established cause for the request. The Court has not authorized Plaintiff to conduct anv
9 discovery. THERE IS NO PDF DOCUMENT ASSOCIATED WITH THIS ENTRY. (afe)
10 TEXT ONLY ENTRY." See Docket Entry No. 100
11 On June 13,2017, the Plaintiff filed and the Court accepted his "Notice to the Court"

72 saying "The prohibition of non-consensual human medical experimentation has long been

13 internationally recognized and is consistent with the Hippocratic Oath, in which doctors

74 swore to "never do harm to anyone." Treating men "as less than beasts" through medical

15 experimentation is no less "perverse" and "distorted" today than it was during the Nuremberg

76 Trials. The Plaintiff in this case stands as a "human test subject" who the Defendants carried

l1 out illegal experiments without the knowledge, consent, or informed consent of the Plaintiff.

1B
See Docket Enfi No. 105
19
On June 15,2Al7 , the Court issued "Order Striking Filed Documents from the
Record" saying "WHEREAS, the documents listed below were improperly filed for the
20
following reason(s). Plaintiff has failed to file his Third Amended Complaint that was due by
27
no later than May 24,2A17. IT IS HEREBY ORDERED that the documents shall be stricken
22
from the record and shall not be considered by the Court: Notice to the Court (Docket Entry
23
No. 105) and Proof of Service (Docket Entry No. 106)." See Docket Entry No. 107
24
On July 14,2017 , the Plaintiff moved for leave to amend complaint pursuant to Rule
25
21 of the FRCP to add the National Institute of Health (I.IIH), the Federal Bureau of
26
Investigation (FBI), the Central Intelligence Asency (CIA), the l\ational Security Agency
21
(NSA), the Office of Special Counsel (OSC), the Equal Employment Opportunity
2B

15
NOTICE TO THE COURT CASE 2:13cv6030
Commission (EEOC),the Department of Defense (DOD), the Department of Energy
(DOE), the Department of Health and Human Services (HHS), the National Aeronautics
and Space Administration O{ASA), the Defense Advanced Research Proiects Asency
(DARPA), the SRO Housins Corporation to include Denise Williams in her official
capacity, its agents, officers and employees both (past and present), and the Volunteers of
America to include Linda Venema in her official capacity, its agents, officers and
employees both (past and present) as defendants in this matter. See Dacket Entry No. I 12.
B Rule 21 provides that parties may be added by order of the court at any time. Absent
9 prejudice to an existing party, undue delay, or bad faith, leave to add should be freely and
10 routinely given. See FTD Corp. v. Banker's Trust Co., 954 F. Supp. 106, 109 (S.D.N.Y.
11
1997). See also Helene Curtis Industries, Inc. v. Sales Affiliates, Inc., 105 F. Supp. 886,90l
72
(S D.N.Y. 1952) (the addition of parties is a "rnafrer to be treated liberally"). As the Court
13
observed in Mullaney v. Anderson, 342 U.S. 4 15, 417 (1952), a contrary rule "would entail
74
needless waste and runs counter to effective judicial administration." See also Charles Alan
15
Wright et al., 7 Federal Practice and Procedure $ l68I, 473 (3d ed. 2001) (Rule 21
16
"provides the courts with a valuable procedurai device that can be used to avoid multiple
1_'7

litigation and to promote liberal joinder of parties").


1B
New parties may even be added after trial. In Mullaney v. Anderson, for example, the
19
Court allowed nonresident fishermen to be added as party plaintiffs after defendants
20
challenged on appeal the standing of the existing plaintiff to raise the constitutional claims of
2l
nonresident fishermen against a challenged territorial licensing scheme. The Court held that
22
there was no prejudice and no impact on the litigation caused by the addition since there were
23
no new claims made by the added parties. 342U.5. at 477.
24
On July 18,2017 , the Court issued "Order Striking Filed Documents from the Record"
25
saying "Whereas, the documents listed below were improperly filed for the following
26
reasons. Plaintiff failed to file his Third Amended Complaint, which was due by no later tha
27
};4ay 24,2A17 . It is hereby ordered that the documents shall be stricken from the record and
28

16
NOTICE TO THE COURT CASE 2:13cv6030
shall not be considered by the Court: Motion for Leave to Amend Complaint to add
Defendants (Docket Entry No. 112) and Proof of Service (Docket Entry No. 113). See
Docket Entry No. I14.
What happens when a U.S. Judge bias taints a case? Comrpt justice.
Judicial misconduct can cost defeated litigants their home, business, custody, health
and freedom.

One reason judicial violations are common is because of the lack of discipline and

frequently go unpunished. In 1960, California created the first judicial disciplinary body in
the country. That body had a dismissal rate of 98% and since 2012, the judiciary has

10 suspended andlor removed just one judge.

11 In 1968, Congress enacted the Federal Magistrates Act to enhance judicial efficiency
L2 in the federal courts. Since then, some judicial functions delegated to magistrate judges have

13 been challenged on constitutional grounds: while federal district judges, appointed pursuant

74 to Article III of the United States Constitution, are protected with life tenure and

15 undiminishable salary, thereby enhancing judicial independence, federal magistrate judges,

t6 appointed pursuant to Article I, have no such protection.

l1 Congress enacted the Federal Magistrates Act in 1968 partIy to replace the {Jnited

18
States Commissioner system, which Congress found to be defective because, among other

t9 flaws, the commissioners were paid under a fee structure according to the nature and number
of matters they handled. This payment system was arguably unconstitutional due to the
2A

commissioners' pecuniary interest in their cases. The greater the number of cases over which
2L

)) they presided, the greater their salary. In addition, Congress recognized,that one-third of the
commissioners were non-law]rers, yet they were applying rules of constitutional law that, to
23
this day, even lawyers and judges find difficult to interpret. Therefore, not only would the
24
Magistrates Act, in the mind of Congress, abolish a flawed system, but it would also enhance
25
judiciai efficiency through the use of a judicial officer with expanded jurisdiction: the
26
magistrate.
2'1
Congress amended the Act in 1976 and 1979. Further, in 1990, Congress changed the
2B

t7
NOTICE TO THE COURT CASE 2:13cv6030
1
title from "magistrates" to "magistrate judges" to reflect the growing responsibilities of the
2
office.
3
The current Magistrates Act grants many more powers to the magistrate judges than
4
the original Act did. Significantly, it allows district judges to refer an entire civil case or
5 criminal misdemeanor case to a magistrate judge for trial with the consent of the parties.
6 Another context in which the constitutionality of magistrate judges'powers has been
1 challenged is their jUrisdiction in civil cases. The Supreme Court has never addressed the
I issue of whether parties consenting to allow a magistrate judge to hear a civil action deprives
9 Article III judges of the essential attributes ofjudicial power. Section 636(c) of the
10 Magistrates Act allows magistrate judges to ooconduct any and all proceedings in a jury or

11 nonjury civil matter and order the entry ofjudgment in the cas," provided that the parties
L2 consent to the magistrate judge's authority.

13 For certain dispositive proceedings, the Act authorizes a magistrate to hear testimony,

74 review the evidence, and submit proposed findings of fact and recommendations to the

15 district judge.

t6 On Wednesday, July 19,2A17, the Plaintiff emailed Jason K. Axe, Assistant U.S.

11
Attorney to conference regarding the Plaintiffs motion to disqualiflr Magistrate Judge Alka

1B
Sagar. In doing so, the Plaintiff stated "Jason, On November 24,2A15, the Court issued

19
"Memorandum and Order dismissing SAC with leave to amend" saying... (d) Plaintiffmay
not add new parties without the Courts permission. fDocket#541 On July 14,20L7,I flled a
20
"Notice of Motion and Motion for Leave to Amend Complaint to Add Defendants:
2l
Memorandum of Points and Authorities in Support Thereof." [Docket #1t21 On July 18,
22
2017, the Court entered into record "Order Striking Filed Documents from the Record" citing
23

,A
"Motion for Leave to Amend Complaint (#112) and Proof of Service (#1 13). Based on
practice and pattern to include allflles and pleadings it has become necessary to flle a motion
25
to disqualiff Magistrate Judge Sagar based on 28 U.S.C. I44 and 28 U.S.C. 455. Not to
25
mention that I have most recently learned that Judge Sagar has herself been named in
21
several RICO suits while using the DOJ's office as a shield to avoid prosecution. I
28

18
NOTICE TO TIIE COURT CASE 2:13cv6030
1
beiieve Magistrate Judge Alka Sagar has demonstrated bias and prejudice against me and
2
based on her own "criminal" past I harbor serious doubts about her impartiality. Pursuant to
3
LR's and 144 and 455 do you have any objections to her recusal? Oliver" EXHIBIT No. 1

4
On Wednesday, July 19,2017 , Jason K. Axe, Assistant U.S. Attorney responded
5 saying "Mr. Mitchell, Defendant does not agree that Judge Sagar should be recused from this
6 matter." EXHIBIT No. 1

1 CONCLUSION
8 Is this judicial discrimination?
9 28 U.S.C. 144 and 28 U.S.C. 455 expressly protects litigants from judges who violate

10 constitutional rights. From being discriminated against or treated differently by reason of


11 race, religion, national origin, gender, sexual orientation or preference, and political opinion.

l2 In this instant action, the Plaintiff has been denied the opportunity to a meaningful

13 hearing or to even be heard. The Plaintiff asserts that deprivation of constitutional protection

14 or court action for the purpose of intimidating him from exercising his opinion via Courl

15 orders is acting ultra-vires.

L6 Given the allegations contained in which the Court must presume to be true and which

11
hopefully should be undisputed, as well as the totality of the facts, it would appear that a

18
reasonable person would conclude that bias exists in this case and, therefore, the Court must

recuse itself under 28 U.S.C. $ 144. Nevertheless, putting aside the question of whether
19
actuai prejudice exists, there can be no doubt that a reasonable person looking at the totalitlz
20
of the circumstances would harbor doubts" about the Court's impartiality and, therefore,
2L
Judge Sagar should certainly recuse herself under 28 U.S.C. $ 144.
22

23
ilt

24
ilt

Z5
ilt

26

21

2B

t9
NOTICE TO THE COURT CASE 2:13cv6030
1
Executed on July 30. 2017 at Los Angeles, California.
2

7
OLIVER B. MITC}IELI III
I
622W}'J-L STREET
o

LOS ANGELES, CALIFORNIA 90014


10
(562) 7re-3872
11
IN PRO PER
12

13

14

15

16

71

18

19

2A

2L

a4
ZZ

,-)

24

25

26

2'7

2B

2A
NOTICE TO TT# COURT CASE 2:13CV6O3O
MOTTOT{ TO DTSQUALTFY
MAGISTRATE JUT}GE AI{I)
MEMORAI{DUM IN SUPPORT
TIIEREOF

JULY 30, 2017

EXHIBIT Nlo. 1

cv-13-6030 (oDw) AS
712012017 Mail - redpatchmarine@hotmail.com

RE: OLIVER B. MITCHELL lllv U.S. DEPARTMENT OF VETERANS AFFAIRS


cv-13-6030-oDW(AS)

Axe, Jason (USACAC) <Jason,Axe@usdoj.gov>


\iJe,l 7i 1912fi17 4:-12 Ptui

h::B M <redpatchmarine@hotmail.com>;

Mr. Mitchell,

Defendant does not agree that Judge Sagar should be recused from this matter.

Jason K. Axe
Assistant U.5. Attorney
i-Q! I g_tt.t L_o"n * l"c-t i r_u- i!, -q
yi I !. l-l $
!-r-:*rsglrl,-i$- ?9q$
(2131 894-8827
(213) 8s4-781e (FAX)

From: B M [mailto:redpatchmarine@hotmail.com]
Sent: Wednesday, july 19, 2017 1:51 PM
To: Axe, Jason (USACAC) <JAxe@usa.doj.gov>
Cc: B M <redpatchmarine@hotmail.com>
subject: ollvER B. MITCHELL lll v U.S. DEPARTMENT OF VETERANS AFFAIRS CV-13-6030-0DW(AS)

Jason,

On November 24,2015, the Court issued "Memorandum and Order dismissing SAC with leave to amend" saying...
{d) Plaintiff may not add new parties without the Courts permission. Docket #54

On July 14,2017 ,l
filed a "Notice of Motion and Motion for Leave to Amend Complaint to Add Defendants:
Memorandum of Points and Authorities in Support Thereof." Docket #112

Only July 'J,8,2Ot7 , the Court entered into record "Order Striking Filed Documents from the Record" citing
"Motion for Leave to Amend Complaint {#1,L2l,and Proof of Service (#113).

Based on practice and pattern to include all files and pleadings it has become necessary to file a motion to
disqualify Magistrate Judge Sagar based on 28 U.S.C. 144 and 28 U.S.C.455.

Not to mention that I have most recently learned that Judge Sagar has herself been named in several RICO suits
while using the DOi's office as a shield to avoid prosecution.

I believe Magistrate Judge Alka Sagar has demonstrated bias and prejudice against me and based on her own
rrgfilnhallr past I harbor
serious doubts about her impartiality.

Pursuant to LR's and 1"44 and 455 do you have any objections to her recusal?

OIiver
https://outlook.live.com/owa/?path=imaillinbox/rp 111