1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RUDOLF SHTEYNBERG, Case No.: 17-CV-1098 JLS (KSC)

12 Plaintiff,

ORDER DENYING PENDING

13 v. MOTIONS 14 15 SAN DIEGO COUNTY JAIL (ECF Nos. 72, 74, 76)

SHERIFF’S DEPARTMENT MEDICAL

16

TEAM,

17 Defendant. 18 19 20 Presently before the Court are Plaintiff Rudolf Shteynberg’s Motion to Reopen Case 21 (“1st Mot.” ECF No. 72) and Motion to Request for a Hearing on Damages (“2nd Mot.,” 22 ECF No. 74). Plaintiff also filed a Notice to the Ethical Committee of the Judicial 23 Performances Recusal of District Judge (“Notice,” ECF No. 76). After considering 24 Plaintiff’s Motions and the applicable law, the Court DENIES Plaintiff’s Motions for the 25 following reasons. 26 BACKGROUND 27 On May 30, 2017, Plaintiff filed a complaint against the San Diego County Jail 28 Sheriff’s Department Medical Team alleging “violations of civil rights,” “medical 1 negligence,” “mass tort,” “false arrests,” “personal injuries,” “time spen[t],” and “$ 2 spen[t].” ECF No. 1. Plaintiff also filed a Motion to Proceed In Forma Pauperis (“IFP”). 3 ECF No. 2. On June 30, 2017, the Court granted Plaintiff’s Motion to Proceed IFP and 4 screened Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(a). ECF No. 6. The Court 5 determined that Plaintiff did not plead sufficient factual allegations for the Court to 6 determine whether he stated a claim under 42 U.S.C. § 1983. Id. at 4. The Court dismissed 7 Plaintiff’s Complaint and allowed Plaintiff thirty days to file an amended complaint. 8 Nearly a year after the Court’s order dismissing his original Complaint, Plaintiff 9 filed a First Amended Complaint on April 6, 2018 (ECF No. 57). On June 12, 2018, the 10 Court screened Plaintiff’s First Amended Complaint pursuant to 28 U.S.C. § 1915(a) and 11 found Plaintiff’s amended complaint failed to state a claim for relief. ECF No. 67. The 12 Court granted Plaintiff thirty days from the date of that order to file an amended complaint 13 and cautioned that “[s]hould Plaintiff fail to file an amended complaint within the time 14 provided, the Court may enter a final order dismissing this civil action with prejudice.” Id. 15 at 6 (emphasis omitted). Plaintiff failed to file an amended complaint, and on July 13, 16 2018, the Court issued an Order to Show Cause (“OSC”) why this case should not be 17 dismissed without prejudice for failure to file an amended complaint. (ECF No. 68). The 18 Court granted Plaintiff until August 17, 2018 to respond to the OSC. Id. When Plaintiff 19 failed to respond to the Court’s OSC or file an amended complaint, the Court issued an 20 order dismissing this case without prejudice on August 20, 2018. ECF No. 69. Plaintiff 21 filed the present Motions nunc pro tunc to September 14, 2021—more than three years 22 after the Court’s order dismissing this case. See ECF Nos. 72, 74, 76. 23 LEGAL STANDARD 24 Under Rule 60, a motion for “relief from a final judgment, order or proceeding” may 25 be filed within a “reasonable time,” but usually must be filed “no more than a year after 26 the entry of the judgment or order or the date of the proceeding.” Fed. R. Civ. P. 60(c). 27 Reconsideration under Rule 60 may be granted in the case of: (1) mistake, inadvertence, 28 surprise, or excusable neglect; (2) newly discovered evidence; or (3) fraud; or if (4) the 1 judgment is void; (5) the judgment has been satisfied; or (6) for any other reason justifying 2 relief. Fed. R. Civ. P. 60(b). 3 ANALYSIS 4 In a single page filing captioned Motion to Reopen Case, Plaintiff states: 5 This is a request to reopen the case Rudolf Shteynberg vs. Sherriff’s Department of the San Diego County on legal matters 6 as tort/civil rights violations/title 1983 monetary request for 7 restitution to compensate illegal tort and battery while being in a custody of the Sheriff’s Department. San Diego City 8 Correctional Facility and false arrest by a police officers during 9 [illegible] done to indirect misconduct of Lady (Lilianna) while in [illegible] services. 10

11 1st Mot. at 1. 12 Plaintiff further states that the Motion “is to notify [illegible] Judge assigned to these 13 legal matters! And Administrator of the Court House of San Diego County.” The Court 14 construes this filing as a motion for reconsideration of the Court’s August 20, 2018 Order 15 (the “Order”) dismissing Plaintiff’s action for failing to respond to the OSC or file an 16 amended complaint. 17 As an initial matter, Plaintiff’s Motion is untimely pursuant to Rule 60. Plaintiff 18 filed the Motion more than three years after the Court issued the Order dismissing this case 19 without prejudice. Even examining the motion on the merits, however, Plaintiff provides 20 no information warranting relief from the Order. In the OSC, “[t]he Court ordered Plaintiff 21 to respond or file an amended complaint on or before August 17, 2018.” Order at 1. 22 Plaintiff did not do so. Id. at 2. The Court allowed Plaintiff multiple opportunities to 23 amend his complaint, but Plaintiff failed to do so. Even three years later, Plaintiff’s present 24 filings cannot be construed as pleadings. The present Motion is void of any reasons why 25 Plaintiff should be granted relief to reopen this case. A motion for reconsideration cannot 26 be granted merely because Plaintiff is unhappy with the judgment, frustrated by the Court’s 27 application of the facts to binding precedent, or because he disagrees with the ultimate 28 decision. See 11 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure 1 § 2810.1 (3d ed.) (“[R]econsideration of a judgment after its entry is an extraordinary 2 remedy which should be used sparingly.”). The Court finds that Plaintiff has failed to 3 provide any factual or evidentiary support for any basis that would justify vacating the 4 Court’s August 20, 2018 Order. Accordingly, Plaintiff’s Motion to Reopen Case is 5 DENIED. 6 Plaintiff’s Motion to Request a Hearing on Damages is similarly brief and provides 7 no factual information regarding Plaintiff’s claims. As the Court has denied Plaintiff’s 8 motion to reconsider the Order dismissing this case, Plaintiff’s Motion to Request a 9 Hearing on Damages is DENIED AS MOOT. 10 Finally, Plaintiff filed a Notice that he captioned Notice to the Ethical Committee of 11 the Judicial Performances Recusal of District Judge. Plaintiff states the purpose of the 12 notice is “to notify that [illegible] master/Judge Sammartino has been recused from 13 presiding over the case as a [illegible] judge, since she refused to appoint a legal counsel 14 to represent the plaintiff on damages claim!” Plaintiff is appearing pro se, and thus his 15 pleadings must be liberally construed. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th 16 Cir. 1987) (“The Supreme Court has instructed the federal courts to liberally construe the 17 ‘inartful pleading’ of pro se litigants.” (citing Boag v. MacDougall, 454 U.S. 364, 365 18 (1982) (per curiam))). Therefore, the Court construes Plaintiff’s notice as a request that 19 the undersigned recuse herself and a request for appointment of counsel. The Court 20 addresses these requests in turn. 21 Under § 455(a), “[a]ny justice, judge, or magistrate judge of the United States shall 22 disqualify [her]self in any proceeding in which h[er] impartiality might reasonably be 23 questioned.” The test for recusal under § 455(a) is an objective one; a judge must recuse 24 herself if “a reasonable person with knowledge of all the facts would conclude that the 25 judge’s impartiality might reasonably be questioned.” United States v. Holland, 519 F.3d 26 909, 913 (9th Cir. 2008) (quoting Clemens v. U.S. Dist. Court, 428 F.3d 1175, 1178 (9th 27 Cir. 2005)) (internal quotation marks omitted); accord Liteky v. United States, 510 U.S. 28 540, 548 (1994). “The ‘reasonable person’ is not someone who is ‘hypersensitive or 1 unduly suspicious,’ but rather is a ‘well-informed, thoughtful observer.’” Holland, 519 2 F.3d at 913 (quoting In re Mason, 916 F.3d 384, 386 (7th Cir.1990)). Plaintiff failed to 3 present any facts to suggest partiality or bias on the part of the undersigned. Plaintiff 4 appears to solely base his request for recusal on the Court’s denial of his motion for 5 appointment of counsel. Notice at 1. On June 12, 2018, the Court denied Plaintiff’s motion 6 to appoint counsel without prejudice. See ECF No. 67 at 5. In denying Plaintiff’s request, 7 the Court reasoned that “Plaintiff’s First Amended Complaint provides the barest 8 information necessary and the Court has dismissed it, per 28 U.S.C. § 1915(e)(2).” Id. 9 Because there is no basis for recusal or disqualification, Plaintiff has not provided any 10 reason why the undersigned’s impartiality might reasonably be questioned. Denying a 11 motion without prejudice is not a basis for recusal. United States v. Ford, 293 F. Supp. 3d 12 1138, 1140 (E.D. Cal. 2018) (“Prior judicial rulings unfavorable to defendant are a basis 13 for appeal, not recusal.”). Therefore, to the extent Plaintiff’s Notice requests the 14 undersigned recuse from the case, that request is DENIED. 15 As to Plaintiff’s request for appointment of counsel, that request is also DENIED. 16 There is no constitutional right to counsel in a civil case. Lassiter v. Dep’t of Social Servs. 17 of Durham Cnty., 452 U.S. 18, 25 (1981). This case has remained closed for more than 18 three years, and Plaintiff never filed an amended complaint. Without an operative 19 pleading, the Court declines to entertain a motion to appoint counsel. As this case remains 20 closed, appointment of counsel is not appropriate. 21 CONCLUSION 22 For the reasons set forth above, the Court DENIES Plaintiff’s Motion to Reopen 23 Case (ECF No. 72) and DENIES Plaintiff’s Motion to Request a Hearing on Damages 24 (ECF No. 74). To the extent Plaintiff’s Notice to the Ethical Committee of the Judicial 25 Performances Recusal of District Judge (ECF No. 76) requests the undersigned recuse 26 /// 27 /// 28 /// 1 herself and requests appointment of counsel, the Court DENIES those requests. This case 2 ||remains closed. 3 IT IS SO ORDERED. 4 Dated: October 25, 2021 tt 5 jen Janis L. Sammartino 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28