                                                                               FILED
                            NOT FOR PUBLICATION                                AUG 06 2012

                                                                            MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


FELITA SAMPLE,                                   No. 11-16231

              Plaintiff - Appellant,             D.C. No. 3:10-cv-05882-SI

  v.
                                                 MEMORANDUM*
FRANK O’HARA; TINA BELL; FIRST
TRANSIT, INC.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                             Submitted June 29, 2012**
                              San Francisco, California

Before: HUG, FARRIS, and LEAVY, Circuit Judges.

       Plaintiff Felita Sample appeals the district court judgment dismissing her pro

se action against First Transit, Inc. (“First Transit”) and two of its employees



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(collectively “Defendants”). Sample’s complaint alleges that Defendants violated

federal law by failing to reserve seating for disabled passengers on a school bus it

operates and by discriminating against Sample. The district court dismissed

Sample’s action with prejudice for failure to state a claim. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

      Sample argues on appeal that Judge Susan Illston was required to recuse

herself from Sample’s case. Sample claims that Judge Illston had rendered an

adverse decision against her in a previous case and that Judge Illston is currently

involved in a “disability proceeding for judicial misconduct.” Sample also argues

that the district court should not have granted Defendants’ motion to dismiss

before Defendants filed an answer to her complaint.

      Judge Illston was not required to recuse herself from hearing Sample’s case.

Sample has not presented evidence of any past case in which Judge Illston ruled

against her, and in any event “[u]nfavorable rulings alone are legally insufficient to

require recusal.” Matter of Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir.

1984). Nor has Sample substantiated her allegation that Judge Illston is involved

in a proceeding for disability or judicial misconduct. In the absence of any such

evidence, it is impossible to determine whether there is in fact any such proceeding

or whether it could have affected Judge Illston’s impartiality. We therefore reject


                                          2
Sample’s argument that Judge Illston acted improperly in declining sua sponte to

recuse herself from the case.

      We also reject Sample’s argument that Judge Illston erred in ruling on

Defendants’ motion to dismiss before Defendants filed an answer to Sample’s

complaint. Although Federal Rule of Civil Procedure 12 prescribes a time period

within which a defendant must file an answer to a complaint, the filing of a motion

pursuant to Rule 12(b) tolls the answering deadline until the district court rules on

the motion. See, e.g., 5B Fed. Prac. & Proc. Civ. § 1346 (3d ed.) § 1346: Service

of Responsive Pleadings—Time for Serving and Filing.

      AFFIRMED.




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