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ORDER

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

RICHARD ROY SCOTT,

Plaintiff,

v.

AL NERIO et. al.,

Defendants.

Case No. C06-5340RJB

ORDER 

This matter comes before the Court on the Report and Recommendation of U.S. Magistrate

Judge J. Kelley Arnold, (Dkt. 221), Plaintiff’s Motion for Reconsideration of the Order Adopting

Report and Recommendation (Dkt. 236), Plaintiff’s Response to this Court’s Order to Show Cause

(Dkt. 218), Plaintiff’s Motion for Self Recusal (Dkt. 219), Plaintiff’s Motion for Temporary

Restraining Order Re: Supplies and Discovery Material (Dkt. 222), Plaintiff’s Motion for Temporary

Restraining Order on Renewed Grounds (Dkt. 223), Motion for Extension of Time to Respond to

the Order to Show Cause (Dkt. 237), Plaintiff’s Motion for Extension of Time to Respond to R & R

and Cross Motion for Summary Judgment (Dkt. 233), Plaintiff’s Motion for a Finding of Perjury

(Dkt. 234), Plaintiff’s Motion for Recusal (Dkt. 241), Plaintiff’s Motion for Protective Order (Dkt.

242), Plaintiff’s Motion to be Heard on Shorter Notice (Dkt. 243), Plaintiff’s Motion for Return of

Computer (Dkt. 246), and Plaintiff’s Motion to be Heard on Shorter Notice Regarding Dkt. 246

(Dkt. 247). The Court has considered the relevant documents filed in favor and opposition to these

motions and the remainder of the file herein.

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ORDER

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I. FACTS

This is a 42 U.S.C. § 1983 Civil Rights action. Dkt. 1. Plaintiff is a resident of the Special

Commitment Center (“SCC”) and, because he is a frequent and vexatious litigator, is subject to a

case management order that restricts his litigation. Dkt. 2. In the present matter, Plaintiff is limited

to litigating the adverse consequences of a disciplinary hearing held on April 6, 2006, regarding

alleged violations of SCC policy. Dkt. 2. The facts related to the hearing are recounted in Judge

Arnold’s July 2, 2007 Report and Recommendation, (Dkt. 221) and shall not be repeated here. 

On June 27, 2007, this Court adopted Judge Arnold’s Report and Recommendation and

ordered Plaintiff to show cause why sanctions should not be assessed against him for failing to be

candid with the tribunal regarding his access to his discovery materials. Dkt. 212. Plaintiff had thirty

days to respond to the order to show cause. Id. Plaintiff filed a Response, but did not address his

failure to be candid with the tribunal. Dkt. 218. On July 3, 2007, Plaintiff filed a Motion for

Reconsideration of the Order Adopting the Report and Recommendation (Dkt. 212) which

recommended the sanctions. Dkt. 236. 

On July 2, 2007, Judge Arnold issued a Report and Recommendation, recommending that

Defendants’ Motion for Summary Judgment be granted and the matter dismissed for two reasons. 

Dkt. 221. First, Plaintiff failed to make the requisite showing in his opposition to the motion for

summary dismissal of his claims. Id. Second, Judge Arnold recommends dismissal of the matter as a

sanction due to Plaintiff’s failure to pay attorneys fees ordered in March 13, 2007 (Dkt. 111). Id.

Plaintiff has filed several motions since the July 2, 2007 Report and Recommendation was

issued, including two motions for recusal, one for Judge Arnold and one for Judge Bryan. Dkts.

236, 219, 222, 223, 237, 233, 234, 241, 242, 243, 246, and 247. 

This opinion will first address the motions for recusal, then the motions for extension of time

to respond, motions for temporary restraining orders and other motions, the Report and

Recommendation for dismissal, and the Order to Show Cause why sanctions should not be assessed

against the Plaintiff for failure to be candid with the Court. 

/

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ORDER

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II. DISCUSSION

A. MOTION FOR RECUSAL

Pursuant to 28 U.S.C. § 144, 

Whenever a party to any proceeding in a district court makes and files a timely and

sufficient affidavit that the judge before whom the matter is pending has a personal

bias or prejudice either against him or in favor of any adverse party, such judge shall

proceed no further therein, but another judge shall be assigned to hear such

proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice

exists, and shall be filed not less than ten days before the beginning of the term at

which the proceeding is to be heard, or good cause shall be shown for failure to file it

within such time. A party may file only one such affidavit in any case. It shall be

accompanied by a certificate of counsel of record stating that it is made in good faith.

Plaintiff’s motions for recusal of Judge Arnold and Judge Bryan should be denied. Plaintiff

has failed to file a “timely and sufficient affidavit that the judge before whom the matter is pending

has a personal bias or prejudice either against him or in favor of any adverse party.” Plaintiff has not

shown good cause for failure to file an sufficient affidavit within the time allotted by the statute. 

Moreover, Plaintiff has filed several motions for recusal, all of which have been denied. e.g. Dkts.

40, 131, and 134. Plaintiff’s failure to comply with the statutory requirements of 28 U.S.C. § 144

should result in a denial of his motions, and no further referral should take place. 

B. MOTIONS FOR EXTENSION OF TIME 

Fed. R. Civ. P. 6(b) permits the Court to enlarge the period of time given to respond to an

order of the Court for cause shown. Plaintiff files two motions for an extension of time to respond

to the Order to Show Cause and the Report and Recommendation. Dkts. 233 and 237. In light of

the prolific filings since the Order to Show Cause and Report and Recommendation were issued,

these motions are frivolous and should be denied. 

C. MOTIONS FOR TEMPORARY RESTRAINING ORDERS AND OTHER

MOTIONS 

 

Plaintiff has not made the necessary showing to justify the granting of a temporary restraining

order or preliminary injunction in any of his pending motions. Dkts. 222, 223, 242, 246, They are

repetitive (in violation of the case management order), are frivolous, and should be denied. 

Plaintiff’s motions for shortening of time should be denied as moot. Dkts. 243 and 247. Plaintiff’s

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ORDER

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motion for a finding of perjury is frivolous and should be denied. Dkt. 234. Plaintiff fails to make

the requisite showing on his motion for summary judgment, and so, his cross motion for summary

judgment (Dkt. 233) should be denied. 

 D. REPORT AND RECOMMENDATION

Judge Arnold’s Report and Recommendation (Dkt. 221), dated July 2, 2007, should be

adopted. As stated in the Report and Recommendation, Plaintiff failed to carry his burden under

Fed. R. Civ. P. 56. Moreover, Plaintiff has failed to comply with the Court’s order in March of 2007

to pay attorneys fees of $480.00. The Defendants’ Motion for Summary Judgment should be

granted. 

E. RULE 11 SANCTIONS FOR FAILURE TO BE CANDID WITH THE

TRIBUNAL

1. Motion for Reconsideration of Adoption of the Report and Recommendation

that recommended sanctions for failure to be candid

Local Fed. R. Civ. P. 7(h) provides, in relevant part, as follows:

Motions for reconsideration are disfavored. The court will ordinarily deny such motions in

the absence of a showing of manifest error in the prior ruling or a showing of new facts or

legal authority which could not have been brought to its attention earlier with reasonable

diligence.

Plaintiff has failed to show a manifest error in the prior ruling or new facts or legal authority

which could not have been brought to the Court’s attention earlier with reasonable diligence. 

Plaintiff’s motion for reconsideration (Dkt. 236) should be denied. 

2. Response to the Order to Show Cause 

On June 27, 2007, Plaintiff was ordered to show cause why Fed. R. Civ. P. 11 sanctions

should not be assessed against him for failing to be forthright regarding his access to discovery

materials. Plaintiff has shown no basis why sanctions should not be awarded. Despite all evidence to

the contrary, Plaintiff still states that he has no access to his discovery materials. Dkt. 218. Plaintiff

has acted in bad faith, and despite being given ample opportunity, has failed to respond to the

Court’s concerns. A sanction of $500.00, to be paid to the Clerk of the Court, is warranted. 

F. CONCLUSION

The Defendants’ Motion for Summary Judgment should be granted and this matter dismissed

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ORDER

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as Judge Arnold recommends. Plaintiff’s remaining motions should be denied. Plaintiff should pay

$500.00 to the Clerk of the Court as a sanction for failing to be candid with the Court. In light of the

multiple pleadings already filed regarding this matter, no motions for reconsideration will be

entertained. Any other pending motions should be denied as moot. 

III. ORDER

Therefore, it is hereby ORDERED that,

(1) Plaintiff’s pending motions (Dkts. 236, 219, 222, 223, 237, 231, 233, 234, 241, 242,

243, 246, and 247), and any other pending motions, are DENIED,

(2) U.S. Magistrate Judge J. Kelley Arnold’s Report and Recommendation (Dkt. 221) is

ADOPTED; 

(3) Plaintiff is ORDERED to pay $500.00 to the Clerk of the Court, and

(4) The Clerk is directed to send copies of this Order to Plaintiff, counsel for Defendants,

and to the Hon. J. Kelley Arnold. Any Motions for Reconsideration shall be docketed

by the Clerk, but no further action will be taken.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to

any party appearing pro se at said party’s last known address. 

DATED this 9th day of August, 2007.

AROBERT J. BRYAN

United States District Judge 

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