Guillen v. Owens et al

Filing 243

ORDER denying 237 Plaintiff's Motion for Change of Judge for Cause with Affidavit. (See document for further details). Signed by Judge David G Campbell on 5/15/12.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,

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No. CV10-0226 PHX JWS (LOA)

Karl Louis Guillen,

ORDER
v.
Quincy Owens, et al.,
Defendants.

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Plaintiff Karl Louis Guillen filed a pro se complaint regarding conditions of his

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confinement. His case is assigned to Judge John W. Sedwick. On March 2, 2012, the

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undersigned judge entered an order denying Plaintiff’s request for a change of judge.

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Doc. 211.

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Plaintiff has filed a new document titled “Motion for Change of Judge for Cause

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With Affidavit.” Doc. 237. Plaintiff has also filed an affidavit in support of his motion.

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Doc. 238. Judge Sedwick interpreted the motion as one to recuse under 28 U.S.C. § 144,

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and requested that it be assigned to another judge for decision. Doc. 239. The Clerk

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assigned the motion to the undersigned judge. Doc. 240.

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Plaintiff’s motion does appear to be brought under 28 U.S.C. § 144. That section

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applies when a party to a proceeding believes that a district judge “has a personal bias or

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prejudice either against him or in favor of any adverse party[.]” 28 U.S.C. § 144.

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“Section 144 expressly conditions relief upon the filing of a timely and legally sufficient

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affidavit.” United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (citations omitted.)

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When a party files such an affidavit, the district judge normally is required to refer the

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matter to another judge for decision. 18 U.S.C. § 144; Sibla, 624 F.2d at 867.

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Plaintiff’s new motion is based on Judge Sedwick’s grant of summary judgment

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for Defendants. Plaintiff alleges that Judge Sedwick misapplied the law (Doc. 237 at 1),

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granted continuances to Defendants but did not permit Plaintiff to rebut new claims in

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reply (id. at 2), took no action to protect Plaintiff from being moved to SMU II (id.), and

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did not follow rules, precedent, or common sense (id.). Plaintiff’s affidavit makes similar

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assertions, arguing that Judge Sedwick violated Rule 56(c) of the Federal Rules of Civil

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Procedure (Doc. 238 at 2), improperly relied upon Edwards v. Balisok, 520 U.S. 641

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(1994) (id.), relied on arguments not made by Defendants (id.), and failed to draw

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inferences in Plaintiff’s favor (id. at 3).

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As the undersigned explained in the previous order denying a change of judge in

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this case (Doc. 211), the standard for recusal under § 144 is “whether a reasonable person

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with knowledge of all the facts would conclude the judge’s impartiality might reasonably

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be questioned.” Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993),

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cert. denied, 510 U.S. 1076 (1994) (quoting United States v. Studley, 783 F.2d 934, 939

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(9th Cir. 1986)). “The Supreme Court has . . . addressed the question of whether the

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personal bias or prejudice alleged in support of a motion for recusal . . . must stem from

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an extrajudicial source. The Court determined that judicial rulings may support a motion

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for recusal, but only ‘in the rarest circumstances’ where they evidence the requisite

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degree of favoritism or antagonism.” United States v. Chisilly, 30 F.3d 1144, 1149 (9th

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Cir.), cert. denied, 513 U.S. 1132 (1994) (quoting Liteky v. United States, 510 U.S. 540,

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555 (1994)). Indeed, “Liteky instructs that ‘judicial rulings almost never constitute a

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valid basis for a bias or partiality motion’ and per se ‘cannot possibly show reliance upon

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an extrajudicial source’ in a judge’s deliberations.” Id. (emphasis in Chisilly). Thus,

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adverse rulings generally are “not sufficient to require recusal, even if the number of such

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rulings is extraordinarily high.” McCalden v. Cal. Library Ass’n, 955 F.2d 1214, 1224

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(9th Cir. 1990), cert. denied, 504 U.S. 957 (1992).
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The undersigned does not find that Judge Sedwick’s ruling on summary judgment

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shows the antagonism or favoritism required to satisfy the “rarest circumstances”

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standard identified by the Supreme Court. Judge Sedwick explained the basis for his

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ruling on each of Plaintiff’s claims, citing relevant authority and explaining why Plaintiff

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had not created sufficient questions of fact to defeat summary judgment. Doc. 227 . The

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issue is not whether Judge Sedwick’s ruling was correct, but whether it shows bias. The

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summary judgment ruling clearly does not satisfy this standard.
Plaintiff’s affidavit asserts his belief that Judge Sedwick engaged in ex parte

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communications with Defendants.

Plaintiff bases this belief on the fact that Judge

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Sedwick informed Defendants there would be no more continuances and then granted

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three, and on Judge Sedwick’s denial of Plaintiff’s request to submit supplemental

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evidence. Doc. 238 at 3. Plaintiff does not cite the continuances he is referring to, but

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the Court notes that this case has been assigned to Magistrate Judge Lawrence O.

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Anderson for day-to-day case management and it appears the continuances afforded

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Defendants were all granted by Judge Anderson, not Judge Sedwick. See Docs. 208, 210,

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219. Judge Sedwick did deny Plaintiff’s motion to submit newly discovered evidence,

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but he did so because Defendants did not dispute the incident reflected in the proposed

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evidence. Doc. 227 at 4.

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In summary, Plaintiff bases his motion solely on Judge Sedwick’s rulings in this

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case, or on rulings by Judge Anderson that cannot be attributed to Judge Sedwick. Such a

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basis generally cannot support a motion for disqualification under § 144, and Plaintiff has

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not shown that this is one of the rare cases where rulings evince bias on the part of a

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judge.

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IT IS ORDERED that Plaintiff’s Motion for Change of Judge for Cause With
Affidavit (Doc. 237) is denied.
Dated this 15th day of May, 2012.

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