United States District Court

For the Northern District of California

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Also pending are the motion for summary adjudication filed on behalf of the

Alameda County defendants, against whom plaintiff has asserted claims for the denial of

medical and mental health care, and the motion for summary judgment filed on behalf of the

Prison Health Services defendants, against whom plaintiff has asserted claims for the denial

of medical care. The motions are fully briefed and will be decided by separate order. 

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

KEENAN WILKINS,

Plaintiff,

 v.

SHERIFF GREG AHERN, et al.,

Defendants. ______________________________ 

 

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No. C 08-1084 MMC (PR) 

ORDER DENYING PLAINTIFF’S

MOTIONS TO DISQUALIFY, FOR

CLASS CERTIFICATION, AND TO

COMPEL DISCOVERY; DIRECTING

ALAMEDA COUNTY DEFENDANTS TO

INFORM COURT HOW THEY INTEND

TO PROCEED WITH RESPECT TO

PLAINTIFF’S NON-MEDICAL AND 

NON-MENTAL HEALTH CARE CLAIMS

(Docket Nos. 162, 163, 215) 

On February 22, 2008, plaintiff, a pretrial detainee then incarcerated at the Santa Rita

County Jail (“SRCJ”), filed the above-titled civil rights action under 42 U.S.C. § 1983. Now

before the Court are plaintiff’s motions to disqualify the undersigned from presiding over the

instant action, for class certification, and to compel discovery.1

A. Motion to Disqualify

Plaintiff moves, under 28 U.S.C. § 144 and 28 U.S.C. § 455, to disqualify the

undersigned from presiding over the instant action. Plaintiff’s motion is premised solely on

his contention that the Court is biased against him because the Court has not yet addressed

Case 3:08-cv-01084-MMC Document 234 Filed 08/11/10 Page 1 of 5
United States District Court

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certain motions filed by plaintiff. 

A party may move to disqualify, or recuse, a judge from presiding in a given case. 

Motions to disqualify fall under two statutory provisions, 28 U.S.C. § 144 and 28 U.S.C.

§ 455. Section 144 provides for recusal where a party files a timely and sufficient affidavit

averring that the judge before whom the matter is pending has a personal bias or prejudice

either against the party or in favor of an adverse party, and setting forth the facts and reasons

for such belief. See 28 U.S.C. § 144. Similarly, § 455 requires a judge to disqualify himself

“in any proceeding in which his impartiality might reasonably be questioned,” 28 U.S.C. §

455(a), including where the judge “has a personal bias or prejudice concerning a party,” id. §

455(b)(1). 

A judge finding a § 144 motion timely and the affidavits legally sufficient must

proceed no further and another judge must be assigned to hear the matter. See id.; United

States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Where the affidavit is not legally

sufficient, however, the judge at whom the motion is directed may determine the matter. See

id. at 868 (holding judge challenged under § 144 properly heard and denied motion where

affidavit not legally sufficient).

The substantive test for personal bias or prejudice is identical under §§ 144 and 455. 

See Sibla, 624 F.2d at 868. Specifically, under both statutes recusal is appropriate where “a

reasonable person with knowledge of all the facts would conclude that the judge’s

impartiality might reasonably be questioned.” Yagman v. Republic Ins., 987 F.2d 622, 626

(9th Cir. 1993) (citation omitted). Consequently, an affidavit filed under § 144 will raise a

question concerning recusal under §§ 455(a) and (b)(1) as well. Sibla, 642 F.2d at 867. 

Here, as noted, plaintiff moves to disqualify the undersigned on the ground of bias and

prejudice based on the Court’s failure to address certain pending motions. Plaintiff’s

allegations categorically fail to establish any basis, under either § 144 or § 455, for a

determination that the Court’s impartiality might reasonably be questioned herein, and,

consequently, are insufficient as a matter of law. See Liteky v. United States, 510 U.S. 540,

555 (1994) (holding judicial rulings on basis of facts introduced or events occurring in course

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of judicial proceedings “almost never” provide grounds for recusal); Sibla, 624 F.2d at 868

(holding affidavit not legally sufficient unless it alleges facts demonstrating bias or prejudice

that “stems from an extrajudicial source”). 

Accordingly, the motion to disqualify will be denied. 

B. Motion for Class Certification

Plaintiff asks the Court to certify the following class of plaintiffs in the instant action:

All persons, pretrial detainees and inmates, from March 2007 through

December 2009, who were in the custody of the Alameda County Sheriff’s

Department Operated County Jails (Santa Rita, Dublin and Glenn Dyer,

Oakland) who were and to the present subjected to the following conditions: (a)

placed in temporary stage rooms without seating, water, bathroom for

unreasonable periods; (b) denied access to clean laundry; (c) denied

opportunities to clean cells; (d) denied adequate medical attention and/or

treatment; (f) denied adequate mental health attention and/or treatment; (g)

forced to exposure of private bodily parts to other inmates when using the

restroom; (h) denied adequate clothing in certain weather conditions; (i)

subjected to excessive force by sheriff jail officials; (j) placed in unsafe and

hazardous conditions such as in overcrowded rooms; (k) received disciplinary

punishment without the Due Process required (Wolff Procedures); (l) received

retaliation from sheriff jail officials for seeking redress (writing grievances);

(m) who were subjected to any other conditions set forth in the SAC,

paragraphs deemed cognizable by the Court’s order, as well as any and all such

cognizable claims to be amended to this action in the future.

(Mot. for Class Certif’n at 1-3.)

The prerequisites to maintenance of a class action are: (1) the class is so numerous

that joinder of all members is impracticable, (2) there are common questions of law and fact,

(3) the representative party’s claims or defenses are typical of the class claims or defenses,

and (4) the representative party will fairly and adequately protect the class interests. See Fed.

R. Civ. P. 23(a). 

Generally, pro se plaintiffs are prohibited from pursuing claims on behalf of others in

a representative capacity. See Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir.

2008); Russell v. United States, 308 F.2d 78, 79 (9th Cir. 1962) (“A litigant appearing in

propria persona has no authority to represent anyone other than himself.”). In particular, pro

se prisoner plaintiffs may not act as class representatives because they cannot fairly and

adequately protect the interests of the class. See Oxendine v. Williams, 509 F.2d 1405, 1407

(4th Cir. 1975). 

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The discovery plaintiff requests appears to pertain to plaintiff’s claims of excessive

force and unconstitutional conditions of confinement.

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Plaintiff herein is an incarcerated litigant who cannot ably protect the interests of a

class of similarly situated prisoners. Accordingly, the motion for class certification will be

denied. 

C. Motion to Compel

On September 30, 2009, plaintiff, prior to serving defendants with his discovery

requests, sent to counsel for the Alameda County defendants a letter requesting to meet and

confer regarding discovery. Thereafter, defendants’ counsel received plaintiff’s discovery

requests and defendants filed responses and objections thereto. Subsequently, plaintiff filed

the instant motion to compel discovery. Defendants counsel then sent plaintiff a meet and

confer letter, to which plaintiff did not respond, and thereafter filed opposition to plaintiff’s

motion to compel, on the grounds the motion is not properly noticed and plaintiff has failed

to meet and confer. On June 24, 2010, plaintiff sent defendants a meet and confer letter,

stating he had not previously received defendants’ meet and confer letter. 

Plaintiff’s motion to compel discovery is premature in light of the parties’ failure to

meet and confer. Additionally, the motion cannot be decided by the Court because the

motion fails to identify the specific discovery requests to which defendants have objected and

the precise nature of their objections.2

 Accordingly, plaintiff’s motion to compel will be

denied without prejudice to plaintiff’s renewing such motion after the parties have fully

complied with the requirements of the Federal Rules of Civil Procedure. Plaintiff, however,

shall not file a renewed motion to compel until defendants have informed the Court how they

intend to proceed with respect to plaintiff’s non-medical and non-mental health care claims,

as discussed below. 

D. Further Proceedings

The instant action concerns the following claims for relief based on events that

allegedly occurred when plaintiff was incarcerated at SRCJ between March 2007 and

December 2008: retaliation, unconstitutional conditions of confinement, unlawful use of

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excessive force, denial of due process, denial of medical care and denial of mental health

care. The second amended complaint has been served on approximately sixty defendants. 

As noted, the Alameda County defendants have filed a motion for summary

adjudication with respect to plaintiff’s claims for the denial of medical and mental health

care, and the Prison Health Services defendants have filed a separate motion for summary

judgment with respect to plaintiff’s medical care claims, the only claims alleged against the

Prison Health Services defendants. 

Still pending and not yet addressed by the Alameda County defendants, however, are

plaintiff’s non-medical and non-mental health care claims against the Alameda County

defendants. Consequently, within thirty days of the date this order is filed, defendants shall

inform the Court whether they will file a summary judgment or other dispositive motion with

respect to said claims, or if they are of the opinion that the claims cannot be resolved by

summary judgment or other dispositive motion and will proceed to trial. 

CONCLUSION

For the reasons stated above, the Court orders as follows:

1. Plaintiff’s motion to disqualify the undersigned from presiding over the instant

action is hereby DENIED.

2. Plaintiff’s motion for class certification is hereby DENIED.

3. Plaintiff’s motion to compel discovery is hereby DENIED without prejudice.

4. Defendants shall inform the Court how they intend to proceed with respect to

plaintiff’s non-medical and -mental health claims, as set forth above. 

This order terminates Docket Nos. 162, 163 and 215.

 IT IS SO ORDERED.

DATED: August 11, 2010 _________________________

MAXINE M. CHESNEY

United States District Judge

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