Robert T Forte v. Christine Barber, et al.

Filing 33

ORDER DENYING MOTION TO DISQUALIFY MAGISTRATE JUDGE 31 by Judge Otis D. Wright, II. (lc). Modified on 6/16/2014. (lc).

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United States District Court
Central District of California

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Plaintiff,

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Case No. 2:13-cv-06829-UA(AJWx)

ROBERT FORTE,

ORDER DENYING MOTION TO

v.

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CHRISTINE BARBER, M.D.;

DISQUALIFY MAGISTRATE

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DEPARTMENT OF CORRECTIONS &

JUDGE [31]

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REHABILITATION; and BRUCE K.

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FACEHAR,

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Defendants.

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Before the Court is Plaintiff Robert Forte’s Motion to Disqualify Magistrate

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Judge. (ECF No. 31.) Forte is a state prisoner and representing himself in this matter.

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He argues that Magistrate Judge Andrew Wistrich should be disqualified for “fail[ing]

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to do his duty.” For the reasons discussed below, the Court DENIES Forte’s Motion.

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On May 23, 2013, Forte initiated this suit against Defendants based on alleged

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Eighth Amendment violations. (ECF No. 1.) Forte alleges that he is more susceptible

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to contracting “Valley Fever,” but that prison officials have ignored his requests for

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special accommodation to prevent him from contracting the disease.

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Forte was denied leave to proceed in forma pauperis, and his Complaint was

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dismissed with prejudice on October 4, 2013. (ECF No. 18.) The Ninth Circuit

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reversed the dismissal with prejudice and remanded the action to district court so that

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Forte could file an amended complaint to try and cure the deficiencies. (ECF No. 27.)

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On May 29, 2014, Magistrate Judge Wistrich issued an order setting a June 30, 2014

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deadline for Forte to file an amended complaint. (ECF No. 30.) Magistrate Judge

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Wistrich also explained what is required of Forte to seek leave to proceed in forma

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pauperis. Forte filed this Motion to Disqualify on June 10, 2014. (ECF No. 31.)

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The standard for disqualification of a federal judge is established by 28 U.S.C.

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§§ 144 and 455. In giving Forte the benefit of the doubt as a pro se movant, the Court

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construes his request under both statutes.

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disqualification to file an affidavit setting forth facts and reasons for his belief that the

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judge “has a personal bias or prejudice either against him or in favor of any adverse

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party.” 28 U.S.C. § 144. When determining the affidavit’s legal sufficiency, “the

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factual allegations in the affidavit must be accepted as true,” although “general or

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conclusory allegations will not support disqualification.” United States v. Zagari, 419

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F. Supp. 494, 500–01 (N.D. Cal. 1976). Further, the alleged bias must be from an

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extrajudicial source and “result in an opinion on the merits on some basis other than

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what the judge learned from his participation in the case.” United States v. Grinnell

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Corp., 384 U.S. 563, 583 (1966).

Section 144 permits a party seeking

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Under 28 U.S.C. § 455, a judge must disqualify herself in any proceeding in

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which one might reasonably question her impartiality. 28 U.S.C. § 455(a). But the

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substantive standard for recusal under §§ 144 and 455 is the same: whether a

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

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impartiality might reasonably be questioned. United States v. Hernandez, 109 F.3d

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1450, 1453–54 (9th Cir. 1997).

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Forte does not specifically address why he believes that the Court should recuse

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Magistrate Judge Wistrich under either §§ 144 or 455. But in any event, the Court

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finds that neither section compels Magistrate Judge Wistrich’s disqualification.

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Section 144 requires the movant to file an affidavit stating “the facts and the

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reasons for the belief that bias or prejudice exists.” § 144. Forte has filed no such

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affidavit, thereby rendering his Motion procedurally defective. That failure is alone

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enough to deny his recusal Motion.

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But even if Forte had properly filed an affidavit, he has not demonstrated that

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Magistrate Judge Wistrich exhibited any “personal bias or prejudice either against him

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or in favor any adverse party.” See § 144. Rather, Forte only alleges that “the court

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will not do its duty to establish law and publish the law.” His allegations lack

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specificity and appear to be based solely on his disagreement with Magistrate Judge

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Wistrich’s application of the law prior to the Ninth Circuit reversal on procedural

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grounds. There is simply no basis for disqualification under § 144.

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Section 455 governs mandatory self-recusal and largely overlaps with § 144.

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Forte likewise has not presented any evidence that Magistrate Judge Wistrich failed to

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recuse himself based on any of the factors enumerated in § 455.

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indication that Magistrate Judge Wistrich has any bias or prejudice concerning any

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party to this action, he previously practiced as a lawyer in the matter, or has any

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financial interest in the outcome of Forte’s case. § 455(a), (b).

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The Court finds that no reasonable person could reasonably question Magistrate

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Judge Wistrich’s impartiality.

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Disqualify. (ECF No. 31.)

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Therefore, the Court DENIES Forte’s Motion to

IT IS SO ORDERED.

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June 16, 2014

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There is no

____________________________________
OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE

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