United States District Court, D. Arizona
Honorable G. Murray Snow United Staes District Judge
before this Court are: Plaintiff's Motion for Recusal
(Doc. 13), Plaintiff's Motion for Relief of Judgment
(Doc. 17) and Plaintiff's Amended Complaint (Doc. 18).
The Court rules on those motions as follows:
Motion for Recusal (Doc. 13) is denied. To the extent
that Plaintiff's motion is based on this Court's
rulings either in this case, or previous cases brought by
Plaintiff involving the same subject matter (and many of the
same defendants), it provides no justification for recusal.
Disqualifying bias or prejudice must stem from something
other than “information and beliefs” the judge
“acquired while acting in his or her judicial
capacity.” United States v. McTiernan, 695
F.3d 882, 891 (9th Cir. 2012) (quoting United States v.
Frias-Ramirez, 670 F.2d 849, 853 n.6 (9th Cir. 1982));
accord United States v. Wilkerson, 208 F.3d 794, 799
(9th Cir. 2000). A judge's adverse rulings during the
course of proceedings in which disqualification is sought, or
in related proceedings, do not constitute a valid basis for
the judge's disqualification. Liteky v. United
States, 510 U.S. 540, 555 (1995); In re
Marshall, 721 F.3d 1032, 1043 (9th Cir. 2013). Thus,
Plaintiff's argument that he attempted to add this Court
to a previous case involving the same subject matter when he
alleges this Court made erroneous rulings is similarly
unavailing. See, e.g., United States v.
Studley, 783 F.2d 934, 940 (9th Cir. 1986) (“A
judge is not disqualified by a litigant's suit or
threatened suit against him . . . .”); see also
Sullivan v. Conway, 157 F.3d 1092, 1096 (7th Cir. 1998)
(“[I]t is improper for a lawyer or litigant . . . to
create the ground on which he seeks the recusal of
the judge assigned to his case. That is arrant
the Court's dismissal of Plaintiff's claims against
two lawyers from the law firm of Osborn Maledon-Lynne C.
Adams and Christina Rubalcava-provide no basis for recusal
for the same reasons. In its last order, the Court dismissed
these Defendants from this suit because Plaintiff had
previously named Ms. Adams and Ms. Rubalcava as defendants in
at least two previous lawsuits involving this same
transaction. Both of those lawsuits were dismissed with
prejudice. (See Doc. 12 at 3.) For similar reasons
the Court dismissed with prejudice Plaintiff's claims as
to Mark Booker, Sean Dunn, Lynnette Hauck, Apollo Ed. Group
Inc., and the University of Phoenix Inc.
addition, Plaintiff asks this Court to recuse because, some
fourteen years ago, prior to this Court's departure from
the practice of law in 2002, the undersigned practiced law at
Osborn Maledon. At that time, neither Ms. Adams nor Ms.
Rubalcava practiced law there. Plaintiff nevertheless asserts
that it creates an appearance of impropriety for this Court
to decide a lawsuit against members of a law firm it left
more than fourteen years ago. Recusal is only 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). A reasonable person with
knowledge of all the facts in this case would not conclude
that the judge's impartiality might reasonably be
questioned in this matter. Therefore, Plaintiff's motion
for recusal is denied.
Court further denies Plaintiff's Motion for Relief of
Judgment (Doc. 17). The Court believes that Plaintiff's
interlocutory appeal to the Ninth Circuit, (Doc. 14), of the
same judgment from which the Plaintiff seeks further relief,
(Doc. 17), deprives the Court of jurisdiction over the
motion. To the extent that this Court has not lost
jurisdiction over such matters, the motion is denied as
Court does not believe, however, that the interlocutory
appeal deprives the Court of jurisdiction over
Plaintiff's Second Amended Complaint (“SAC”).
(Doc. 18.) As previously mentioned, this lawsuit is based on
the same subject matter as others previously filed by
Plaintiff that have now been dismissed or are on appeal.
Nevertheless, while the Court dismissed Plaintiff's
claims as to the newly added Defendants-the United States of
America, Inc., the U.S. Department of Education, U.S.
Education Secretary Arne Duncan, Serena Amos, FedLoan
Servicing Center and attorney Warren Stapleton-it allowed
Plaintiff a chance to amend the claims as to those newly
added defendants. In response, Plaintiff filed his Second
Amended Complaint (“SAC”) on January 9, 2017.
Plaintiff's SAC still fails to state any plausible claim
against any of the remaining Defendants. Liberally
interpreted, the SAC alleges that under its loan programs the
United States allowed now-dismissed Defendant Apollo to
certify the Plaintiff to receive a Stafford loan to pursue
his education with Apollo institutions. The SAC alleges
that in certifying Plaintiff for the maximum loan amount
under the Stafford loan program Apollo violated Department of
Education regulations, and falsified his eligibility so that
Plaintiff received a maximum Stafford loan which he
subsequently was unable to service, and on which he
ultimately defaulted, but which was ultimately discharged in
a related proceeding in bankruptcy court.
in paragraph 40, Plaintiff alleges that because the United
States allowed Apollo to certify Stafford loans, and because
Education Secretary Arne Duncan was charged with properly
supervising Title IV funding programs including disbursements
under these programs, Secretary Duncan and the United States
are liable for failing to prevent Apollo from wrongfully
certifying Plaintiff's loan eligibility.
the SAC alleges that Serena Amos was assigned by Secretary
Duncan to investigate Plaintiff's complaint about
Apollo's certification of a loan to him. It further
alleges that Secretary Duncan was obliged to properly
supervise and train Amos in her investigative function.
Liberally read, the Complaint alleges that Amos was
“not trained to ascertain any legal issues regarding
Stafford loan overpayments, ” and, apparently, as a
result, Amos, Secretary Duncan and the United States are
liable to Plaintiff for negligence, gross negligence,
reckless and wanton disregard against the Plaintiff's
civil right to contract for a post-secondary education.
these claims are frivolous,  and given the past history of
such complaints already filed by Plaintiff are harassing.
They are dismissed with prejudice. Further, the revised Count
1A asserts FCRA and FDCPA claims against the United States.
This court can ascertain no FDCPA claims against any
Defendant in the SAC. Merely asserting that the Plaintiff has
an FDCPA claim against the Defendants does not state such a
claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79
closest the SAC comes to alleging a FCRA claim is its
allegation that Fedloan was a furnisher of information under
the FCRA and had inaccurately reported to three credit
reporting agencies that the Plaintiff owed $2052.00 in
Stafford student loan debt. (Doc. 18 at 11.) As a result,
Plaintiff alleges that he has had credit applications denied.
(Id. at 12 n. 24.)
assuming Fedloan was a furnisher of information under FCRA,
the SAC does not state a cause of action under FCRA. The
statute gives no private right of action until the
furnisher-in this case Fedloan-receives notice from a credit
reporting agency that a consumer disputes the information it
provided and the furnisher fails to take appropriate action
as a result. “[N]otice of a dispute received directly
from the consumer does not trigger furnisher's duties
under the statute.” Gorman v. Wolpoff &
Abramson, LLP, 584 F.3d 1147, 1153-54 (9th Cir. 2009).
In the absence of such a notice provided to the furnisher by
a credit reporting agency, a furnisher has no obligations
under the statute that give rise to a private right of
action. Id. Plaintiff has made no such plausible
later the Complaint alleges that because the United States
employed Fedloan for Stafford loan management and collection,
the United States is liable for any of Fedloan's acts
regarding the loss of personal funds Plaintiff should have
obtained from the Deputy Trustee, apparently in his
bankruptcy. (Doc. 18 at 17.) There is no plausible allegation
as to any distribution or credit he should have received from
the Deputy Trustee in his bankruptcy that related to the
allegedly discharged student loan debt. But, in any event,
relief sought for any alleged failure of distributions due in
Plaintiff's already completed bankruptcy court action
should be sought from the bankruptcy court, not this Court.
Additionally, the SAC's allegation that Mr. Stapleton
along with Ms. Adams represented Apollo in the bankruptcy and
failed to inform the Deputy Trustee that a timely claim had
been submitted by third-party creditors does not state a
claim under a cognizable legal theory. See In ...