Sherrod v. Ryan et al

Filing 71

ORDER - IT IS ORDERED construing Plaintiff's "Notice of Conflict" (Doc. 69 ) as a request for the disqualification of the undersigned Magistrate Judge. IT IS FURTHER ORDERED denying Plaintiff's request for disqualification of the undersigned Magistrate Judge (Doc. 69 ). (See document for further details). Signed by Magistrate Judge Eileen S Willett on 1/13/17. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Roosevelt Marquize Sherrod, Plaintiff, 10 11 ORDER v. 12 No. CV-15-00296-PHX-DJH (ESW) Charles L Ryan, et al., 13 Defendants. 14 15 16 On September 20, 2016, the Court denied Plaintiff’s “Request for Rule 35 17 Physical and Mental Examination” (Doc. 65) and Plaintiff’s request for court-appointed 18 counsel (Doc. 64). (Doc. 66). The Court has reviewed Plaintiff’s “Notice of Conflict” 19 24 (Doc. 69) filed on December 29, 2016. In the Notice, Plaintiff states: The District Court Judge Eileen S. Willett have biasedly manifested a shorage [sic] of the immoralization [sic] of virture [sic] currenting [sic] from the Constitution of the United State of America in this matter of a violation of [Plaintiff’s] 8th Amendment; District Court Judge Eileen S. Willett denys [sic] to Appoint me counsel and Rule 35 physical and mental examination because the District Court Judge don’t consider me worthy nor the matter. 25 (Id. at 2). The Court construes Plaintiff’s Notice as a motion seeking the disqualification 26 of the undersigned Magistrate Judge pursuant to 28 U.S.C. § 455. Under 28 U.S.C. § 27 455, any federal justice, judge, or magistrate judge must disqualify himself or herself in 20 21 22 23 28 1 any proceeding in which his or her impartiality might reasonably be questioned. 1 The 2 Ninth Circuit has “held repeatedly that the challenged judge himself should rule on the 3 legal sufficiency of a recusal motion in the first instance.” United States v. Studley, 783 4 F.2d 934, 940 (9th Cir. 1986); see also Clay v. Brown, Hopkins & Stambaugh, 892 5 F.Supp. 11, 13 (D.D.C. 1995) (holding that a party who sought to vacate reference of a 6 civil matter to a magistrate judge based on alleged bias should have presented to the 7 magistrate judge a motion for recusal). In determining whether a judge’s disqualification 8 is required under 28 U.S.C. § 455, the Ninth Circuit has adopted the following objective 9 test: “whether a reasonable person with knowledge of all the facts would conclude that 10 the judge’s impartiality might reasonably be questioned.” United States v. Nelson, 718 11 F.2d 315, 321 (9th Cir. 1983). Moreover, “[t]he alleged prejudice must result from an 12 extrajudicial source; a judge’s prior adverse ruling is not sufficient cause for recusal.” 13 Studley, 783 F.2d at 939. 14 Here, Plaintiff only refers to the undersigned’s denial of Plaintiff’s motions for a Rule 15 35 examination and court-appointed counsel to support his claim of judicial bias. 16 reiterate, the Ninth Circuit has held that adverse rulings do not establish the requisite bias 17 necessitating a judge’s recusal, even in cases where the rulings were erroneous. United 18 States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983) (holding that a judge’s “acceptance of an 19 invalid guilty verdict in the first trial did not necessitate recusal”); Hagans v. Andrus, 651 20 F.2d 622, 628 (9th Cir. 1981) (“It is not a ground for disqualification that the judge has ruled 21 against the moving party or that he may have committed an error of law.”). Plaintiff has 22 presented no evidence of judicial bias. The Court does not find that a reasonable person with 23 knowledge of all the facts would conclude that the undersigned Magistrate Judge’s 24 impartiality might reasonably be questioned. To 25 1 26 27 28 A federal judge’s recusal is also required for personal bias or prejudice under 28 U.S.C. § 144. “This section, however, requires the timely filing of an affidavit alleging such bias.” Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1045 n.9 (9th Cir. 1987). Because Plaintiff did not file an affidavit with his Notice of Conflict, 28 U.S.C. § 144 is not applicable. See id. (“Because no affidavit was filed by Texaco, section 144 is not applicable.”); United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (“Section 144 expressly conditions relief upon the filing of a timely and legally sufficient affidavit.”). -2- 1 Based on the foregoing, 2 IT IS ORDERED construing Plaintiff’s “Notice of Conflict” (Doc. 69) as a request 3 4 5 6 for the disqualification of the undersigned Magistrate Judge. IT IS FURTHER ORDERED denying Plaintiff’s request for disqualification of the undersigned Magistrate Judge (Doc. 69). Dated this 13th day of January, 2017. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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