Beitman v. Correct Clear Solutions et al

Filing 287

ORDER that Plaintiff's Motion for Recusal (Doc. 275 ) and Motion to Strike (Doc. 279 ) are denied. See the attached order for additional information. Signed by Senior Judge James A. Teilborg on 4/15/2022. (RMW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lee Michael Beitman, et al.,

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Plaintiffs,

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ORDER

v.

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No. CV-17-08229-PCT-JAT

S. Herrick,

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Defendant.

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Pending before the Court is Plaintiff’s “Memorandum in Support of Motion to

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Recuse.” (Doc. 275). Plaintiff has also filed what he calls an “Affidavit” in support of his

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Motion to Recuse. (Doc. 276). Defendant Herrick filed a response. (Doc. 278). Plaintiff

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then filed a Motion to Strike Defendant’s Response. (Doc. 279). The Court now rules.

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Motions to disqualify or recuse a federal judge fall under two statutory provisions,

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28 U.S.C. §§ 144 and 455.1 Plaintiff has failed to comply with the procedural requirements

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of 28 U.S.C. § 144, namely, an affidavit sufficiently stating the basis for his claims of bias

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and prejudice. See Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988).

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Plaintiff’s proffered affidavit fails to set forth valid claims of bias or prejudice that would

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warrant further review by another judge. Thus, his motion will not be granted under that

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provision.

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Section 455 has no procedural requirements but calls for recusal only when “a

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reasonable person with knowledge of all the facts would conclude that the judge’s

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Although Plaintiff also appears to invoke 28 U.S.C. § 351, any such complaint under
Section 351 is not properly filed with the district court.

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impartiality might reasonably be questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043

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(9th Cir. 2008) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997))

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abrogated on other grounds in Simmons v. Himmelreich, 136 S.Ct. 1843 (2016). “In nearly

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all cases, the source of any alleged bias must be extrajudicial.” Young v. Arizona Dep't of

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Env’t Quality, No. CV-20-1617-PHX-DGC-JZB, 2020 WL 5544360, at *2 (D. Ariz. Sept.

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16, 2020) (citing Liteky v. United States, 510 U.S. 540, 544–56 (1994)). In other words, a

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judge’s rulings, alone, “almost never constitute a valid basis for a bias or partiality motion.”

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In re Marshall, 721 F.3d 1032, 1041 (9th Cir. 2013) (quoting Liteky, 510 U.S. at 555).

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Here, Plaintiff alleges no extrajudicial source of bias, nor any bias other than his

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displeasure with the Court’s rulings against his myriad motions in this case and the prior

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related case. (See Doc. 275). Nor has Plaintiff presented evidence of favoritism or

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antagonism on behalf of the Court. There is no showing or even suggestion that an

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objectively reasonable basis exists for this Court’s recusal. Thus, the Court finds no basis

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for recusal under 28 U.S.C. § 455, so Plaintiff’s motion will not be granted under that

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section either.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Recusal (Doc. 275) is denied.

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IT IS FURTHER ORDERED that the Motion to Strike (Doc. 279) is denied.

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Dated this 15th day of April, 2022.

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