James Steven Davis v. Office of the Federal Public Defender et al

Filing 29

ORDER DENYING MOTION TO DISQUALIFY JUDGE R. GARY KLAUSNER 26 by Judge Dean D. Pregerson. (lc). Modified on 2/19/2015 (lc).

1
2

O

3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

JAMES STEVEN DAVIS,

12
13
14

Plaintiff,
v.
OFFICE OF THE FEDERAL PUBLIC
DEFENDER, et al.,

15
16

Defendants.
___________________________

)
)
)
)
)
)
)
)
)
)
)

Case No. CV 14-09712 RGK (PJWx)
ORDER DENYING MOTION TO
DISQUALIFY JUDGE R. GARY KLAUSNER
[Dkt. Nos. 25, 26]

17
18

Plaintiff in this case moves to disqualify Judge R. Gary

19

Klausner, to whom the case is assigned, on the grounds of bias,

20

under 28 U.S.C. § 144.

21

Section 144 is substantively the same as 28 U.S.C. §

22

455(b)(1), which in turn is merely a specific application of §

23

455(a).

24

As the Ninth Circuit has explained:

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

25

The test under § 455(a) is whether a reasonable person with

26

knowledge of all the facts would conclude that the judge's

27

impartiality might reasonably be questioned.

28

judge’s partiality must be shown to be based on information

Typically, a

1

from extrajudicial sources, although sometimes, albeit

2

rarely, predispositions developed during the course of a

3

trial will suffice.

4

develops during the course of the proceedings, it can be the

5

basis of recusal only when the judge displays a deep-seated

6

and unequivocal antagonism that would render fair judgment

7

impossible.

In the instance where the partiality

8

F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d

9

1128, 1144-45 (9th Cir. 2001) (internal quotations and citations

10
11

omitted).
Plaintiff’s motion and affidavit do not refer to any extra-

12

judicial sources.

13

“must be” biased against him, because Judge Klausner “refuses” to

14

order production of certain documents or other evidence that

15

Plaintiff asserts are exculpatory.

16

Although the motion and affidavit do not include any citations to

17

the record, the Court surmises that Plaintiff is referring to Dkt.

18

Nos. 452 and 453 in Case No. 2:04-cr-00770-RGK, and possibly also

19

to Dkt. Nos. 1 and 3 in Case No. 2:14-cv-02504-RGK.

20

Rather, Plaintiff argues that Judge Klausner

(Affidavit at 2:25-3:4.)

In the criminal case, No. 2:04-cr-00770-RGK, Plaintiff moved

21

for an order requiring the government to turn over certain

22

unspecified “property and documents the Government is still

23

holding” that were “relevant to” Plaintiff’s claim of actual

24

innocence as to crimes of which he had been convicted.

25

452.) Judge Klausner denied that motion in a minute order, for two

26

reasons: first, Plaintiff, having been declared a vexatious

27

litigant, was not permitted to file documents with the court

28

without prior approval; and second, because Plaintiff had appealed
2

(Dkt. No.

1

his case to the circuit court, the motion should have been made

2

before that court instead.

3

(Dkt. No. 453.)

In a related civil case, No. 2:14-cv-02504-RGK, Plaintiff

4

moved for return of “either my personal property or property from

5

my Law Firm” seized during investigation of the criminal matter.

6

(Dkt. No. 1.)

7

ground that “Petitioner has filed many civil lawsuits and appeals

8

seeking to challenge his conviction and establish his ‘actual

9

innocence’ to the Court,” and therefore there was a “legitimate

Judge Klausner denied this motion as well, on the

10

reason” for the government to retain the seized property.

11

No. 3.)

12

(Dkt.

Plaintiff alleges that Judge Klausner “must” have acted “based

13

on some bias or prejudice he has against me, precisely because I

14

continue to claim my unwavering, well founded position of my Actual

15

Innocence.”

16

actual bias that Plaintiff presents, however, is that Judge

17

Klausner has not ruled in his favor despite that fact that (1)

18

Plaintiff’s own attorney has “made an independent determination of

19

my Actual Innocence,” (2) “case law supports” Plaintiff’s motions,

20

and (3) Judge Klausner’s rulings are unfair.

21

19, 3:9.)

22

however, none of them shows “a deep-seated and unequivocal

23

antagonism that would render fair judgment impossible.”

24

244 F.3d at 1145.

25

is simply irrelevant to Judge Klausner’s rulings.

26

true that case law supports Plaintiff’s positions and that Judge

27

Klausner’s rulings were therefore “unfair,” the most that can be

(Affidavit at 3:2-4.)

The only evidence of such

(Id. at 2:5-6, 2:17-

Even if the Court assumes these alleged facts are true,

Hanshaw,

Plaintiff’s lawyer’s opinion of Plaintiff’s case

28
3

And if it is

1

inferred from that fact is that the judge made an error.

2

not the same as antagonism.

3
4

Error is

The Court finds no ground for disqualification of Judge
Klausner in this case.

The motion is therefore DENIED.

5
6

IT IS SO ORDERED.

7
8
9

Dated: February 19, 2015
DEAN D. PREGERSON
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4