ORDER
ALLISON CLAIRE, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Currently pending before the court are defendants' motions to dismiss (ECF Nos. 24, 25) and plaintiff's motions for preliminary injunction (ECF No. 51), to conduct discovery (ECF No. 52), to recuse (ECF No. 62), and for extension of time to reply in support of his motion for preliminary injunction (ECF No. 64). Also before the court is plaintiff's first amended complaint. ECF No. 39.
I. Motion to Recuse
Plaintiff has filed another motion to recuse the undersigned magistrate judge from this action and requests that the District Judge rule on the motion because of the undersigned's denial of his previous motion. ECF No. 62. Plaintiff's motion is considered pursuant to the standards set forth in 28 U.S.C. §§ 144 and 455.
As an initial matter, plaintiff's motion is properly before the undersigned. The Ninth Circuit has "held repeatedly that the challenged judge h[er]self should rule on the legal sufficiency of a recusal motion in the first instance." U.S. v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (citing U.S. v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978) (collecting cases)).
"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." 28 U.S.C. § 144. "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Under both recusal statutes, the substantive standard is "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Studley, 783 F.2d at 939 (quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (citations omitted)).
Plaintiff alleges, once again, that the first amended complaint contains allegations against the undersigned. ECF No. 62 at 3. He also argues that the undersigned should be removed because she is deliberately obstructing his prosecution of the instant case and plaintiff has filed a complaint of judicial misconduct and a civil rights complaint against her. Id. at 2. The court previously reviewed plaintiff's first amended complaint, including the portions specifically indicated by plaintiff as containing allegations against the undersigned. The court has once again reviewed the first amended complaint and has again determined that the undersigned is not named as a defendant and is unable to identify any allegations against her other than those contained in the declaration appended to the proposed amended complaint. ECF No. 39 at 29-30, ¶¶ 7-17. In the declaration, plaintiff alleges that the undersigned has failed to act on his requests for an investigation into his allegations, leading him to believe that she is part of "a conspiracy to obstruct justice." Id. at 30, ¶ 17. As previously addressed, plaintiff's requests for an investigation are outside the court's authority (ECF 50 at 2) and to the extent plaintiff seeks to have the court forward documents for him, the court is not a forwarding service and plaintiff does not require an order from this court to send documents directly to the agencies he seeks to have investigate his allegations.
To the extent plaintiff's claims of bias and obstruction arise out of the undersigned's rulings in this case, "judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. U.S., 510 U.S. 540, 555 (1994). Plaintiff's allegations that the undersigned is deliberately delaying his prosecution of this case are entirely baseless and are founded on nothing more than speculation and plaintiff's frustration at the pace of litigation. "Section 455 does not require the judge to accept all allegations by the moving party as true. If a party could force recusal of a judge by factual allegations, the result would be a virtual `open season' for recusal." United States v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986) (citing Phillips v. Joint Legislative Comm., 637 F.2d 1014 (5th Cir. 1981)). "[A] judge, having been assigned to a case, should not recuse himself on unsupported, irrational, or highly tenuous speculation." Id. While the court understands plaintiff's frustration at how long it can take to resolve matters, he has been advised that the delays are not attributable to any malicious intent toward him, but rather to the fact that the Eastern District of California maintains one of the heaviest caseloads in the nation, a significant portion of which is comprised of pro se inmate cases. This sometimes causes unavoidable delays in the resolution of individual matters.
Finally, with respect to plaintiff's argument that the undersigned should recuse herself because he has filed a judicial complaint and a civil complaint against her, these are not grounds for recusal. "A judge is not disqualified by a litigant's suit or threatened suit against him or by a litigant's intemperate and scurrilous attacks." Studley, 783 F.2d at 940 (citations omitted).
Plaintiff's conclusory allegations, based on nothing more than speculation, fail to establish a reasonable question as to the undersigned's impartiality or that a bias or prejudice exists. The request for recusal therefore will be denied.
II. Defendants' Motions to Dismiss
Defendant Sagireddy and defendants Foronda and Naseer have filed motions to dismiss on the grounds that plaintiff's complaint fails to state a claim and that plaintiff failed to exhaust his administrative remedies prior to initiation of his lawsuit. ECF Nos. 24, 25. In his opposition, plaintiff states that though he believed his complaint did state a claim, a first amended complaint was being submitted to correct the defects argued by the defendants. ECF No. 31 at 2, 4. Plaintiff also argues that he is excused from exhausting administrative remedies because such remedies were made unavailable to him. Id. at 3. Plaintiff eventually filed an amended complaint with another copy of his opposition to the motions to dismiss. ECF Nos. 39, 40.
Although the first amended complaint was filed outside the time for amendment as a matter of course, Fed. R. Civ. P. 15(a), the court has reviewed the first amended complaint and finds that it states claims for relief against the current defendants as well as several other individuals. ECF No. 39. The court will therefore accept the first amended complaint and deny the motions to dismiss as moot. A separate order screening the first amended complaint will issue in due course.
Defendant Sagireddy argues that plaintiff should not be permitted to amend because it would be futile due to plaintiff's failure to exhaust administrative remedies. ECF No. 33 at 5. However, exhaustion is an affirmative defense and "inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216 (2007). Although plaintiff has indicated that he did not exhaust his administrative remedies, he alleges that they were made unavailable to him. ECF No. 31 at 3. Because plaintiff was not required to and did not plead facts related to exhaustion in his complaint, resolution of whether administrative remedies were rendered unavailable will require consideration of facts outside the pleading and is therefore inappropriate for disposition on a motion to dismiss. If defendants choose to pursue this defense after the first amended complaint is screened, they will need to file a motion for summary judgment on the issue.
III. Motion to Conduct Discovery
Plaintiff seeks leave to seek discovery prior to screening of the amended complaint or the filing of an answer by defendants. ECF No. 52. Since the first amended complaint has yet to be screened, the scope of discovery has not been established. Additionally, there is the possibility that plaintiff's claims may ultimately be barred due to failure to exhaust. Therefore, the court does not find any reason to permit discovery prior to screening of the complaint or the filing of an answer by defendants. Plaintiff's motion will be denied.
IV. Motion for Extension of Time
Plaintiff seeks additional time to file a reply in support of his motion for preliminary injunction. ECF No. 64. His reply has since been filed. ECF No. 66. The court will therefore grant plaintiff's motion and the reply is deemed timely filed. The motion for preliminary injunction will be ruled on in due course.
Accordingly IT IS HEREBY ORDERED that:
1. Plaintiff's motion to recuse (ECF No. 62) is denied.
2. The First Amended Complaint (ECF No. 39) is submitted for screening, and defendants' motions to dismiss (ECF Nos. 24, 25) are denied as moot.
3. Plaintiff's motion to conduct discovery (ECF No. 52) is denied.
4. Plaintiff's motion for extension of time (ECF No. 64) is granted and his reply in support of his motion for preliminary injunction (ECF No. 66) is deemed timely.
