Hernandez v. Brewer et al

Filing 109

ORDER denying that part of Plaintiff's Request for Change of Venue that is a request for recusal of the Honorable James A. Teilborg, doc. 83 . Signed by Judge G Murray Snow on 3/13/13.(SJF)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Cristobal Hernandez, Jr., No. CV-11-01945-PHX-JAT Plaintiff, 10 ORDER 11 v. 12 Janice K. Brewer, Governor of the State of Arizona, in her official capacity; et al., 13 Defendants. 14 15 16 Pending before this Court is that part of Plaintiff’s Request for Change of Venue 17 that is a request for recusal of the Honorable James A. Teilborg (Doc. 83). In this 18 Motion, signed under penalty of perjury, Plaintiff asserts that his case should be 19 reassigned to another judge because, in informing the Plaintiff that if he did not 20 participate in discovery his case could be dismissed, Judge Teilborg made an “unsolicited 21 and premature threat of dismissal,” described the Plaintiff as “uncooperative” and 22 unfairly takes the Defendants’ position. None of these arguments have merit. Therefore, 23 for the reasons further explained below, the motion is denied. ANALYSIS 24 25 26 27 28 Two statutes govern whether a federal judge must recuse in a particular case. The first, 28 U.S.C. § 144 states: 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 1 2 3 4 5 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, . . . 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. 28 U.S.C. § 144 (2006). The second statute 28 U.S.C. § 455 (2006) further specifies: 6 7 8 9 10 11 12 (a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. 28 U.S.C. § 455 (2006). 13 14 In interpreting these statutory provisions the Supreme Court has determined that a 15 court’s judicial rulings “almost never” constitute a valid basis for a motion to disqualify. 16 This is because “opinions formed by the judge on the basis of facts introduced or events 17 occurring in the course of the current proceedings, or of prior proceedings do not 18 19 constitute a basis for a bias or partiality motion unless they display a deep-seated 20 favoritism or antagonism that would make fair judgment impossible.” United States v. 21 Liteky, 510 U.S. 540, 555 (1994). Thus, statements made in ruling on particular motions 22 23 establish bias only in extremely rare circumstances. “[E]xpressions of impatience, 24 dissatisfaction, annoyance, and even anger, that are within the bounds of what imperfect 25 men, and women, even after having been confirmed as federal judges, sometimes display. 26 27 28 A judge’s ordinary efforts at courtroom administration – even a stern and short-tempered judge’s ordinary efforts at courtroom administration – remain immune.” Id. at 555-56. -2- 1 2 The moving party bears the burden of proving facts sufficient to justify recusal. And, the mere filing of an affidavit of disqualification pursuant to 28 U.S.C. § 144, even 3 4 though such an affidavit was not filed here, does not amount to sufficient proof. First, 5 pursuant to the terms of the statute, the Court must determine whether the claims of bias 6 in the statute are legally sufficient before determining that the Court “shall proceed no 7 8 9 10 11 further” on the movant’s case. The statute “must be given the utmost strict construction to safeguard the judiciary from frivolous attacks upon its integrity and to prevent abuse and insure the orderly functioning of the judicial system.” Rademacher v. City of Phoenix, 442 F. Supp. 27, 29 (D. Ariz. 1977) (citations omitted). Allegations that are 12 13 merely conclusory are not legally sufficient. United States v. $292,888.04 U.S. Currency, 14 54 F.3d 564, 566 (9th Cir. 1995); United States v. Vespe, 868 F.2d 1328, 1340 (3d. Cir. 15 1989). 16 17 1. Allegations of actual or apparent prejudice 18 On October 29, 2012, Plaintiff was served with discovery requests from 19 Defendant(s). Three days later, in the hope of appealing some of the Court’s previous 20 21 adverse rulings, Plaintiff requested the entry of a Rule 54(b) judgment. Thereafter, the 22 Plaintiff filed a notice with the Court see Doc. 76, that stated “Plaintiff will forego any 23 disclosure until he receives a decision by this Court” on his request for entry of judgment. 24 The Court subsequently entered an order advising the Defendant that “Plaintiff’s decision 25 26 not to participate in discovery is not supported by any legal authority and Plaintiff is 27 warned that, if he continues to refuse to participate in discovery, the Court will dismiss 28 this case for failure to participate in discovery, and for failure to prosecute pursuant to -3- 1 Federal Rules of Civil Procedure 37(b) and 41(b).” 2 In its order the Court merely advises the Plaintiff of the ultimate consequences of 3 4 his announced determination to “forego any disclosure until he receives a decision by this 5 Court.” Plaintiff’s attempt to otherwise characterize the Court’s order as indicating some 6 form of bias sufficient to warrant recusal is both meritless and unavailing. 7 Plaintiff also asserts in his motion that he is disturbed with the Court’s analysis of 8 9 issues of absolute or qualified immunity and with “his ruling regarding Plaintiff’s Notice 10 of Claims and Statute of Limitations.” In his motion, the Plaintiff then argues at some 11 length the merits of these issues. Nevertheless, it is not apparent to the Court whether the 12 13 Plaintiff complains about rulings made by judges of the state superior court system or 14 Judge Teilborg. Regardless, as the Supreme Court has already made clear “opinions 15 formed by the judge on the basis of facts introduced or events occurring in the course of 16 17 . . . prior proceedings do not constitute a basis for a bias or partiality motion unless they 18 display a deep-seated favoritism or antagonism that would make fair judgment 19 impossible.” Liteky, 510 U.S. at 555. They do not. Based on the forgoing, the Court has 20 21 determined that neither 28 U.S.C. § 144 or 28 U.S.C. § 455 require or merit the recusal of 22 Judge Teilborg in this case. Accordingly, 23 /// 24 /// 25 26 /// 27 /// 28 /// -4- 1 2 IT IS HEREBY ORDERED denying Plaintiff’s Motion for Change of Venue to the extent it requests the recusal of Judge Teilborg (Doc. 83). 3 4 Dated this 13th day of March, 2013. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?