Anthony Grissom Sr v. Riverside County Jail et al

Filing 107

MINUTES (IN CHAMBERS): ORDER by Judge Percy Anderson: Before the Court is a Motion to Recuse filed by plaintiff Anthony Grissom 97 in Case No. ED CV 12-1866 PA (MRW)). Plaintiff seeks to disqualify United States MagistrateJudge Michael R. Wilner. Plaintiff, who is appearing pro se, has two actions pending in this Court, Case Nos. ED CV 10-1727 PA (MRW) and ED CV 12-1866 PA (MRW). The caption of Plaintiff's Motion appears to seek the disqualification of Magistrate Judge Wilner in both ac tions. In accordance with General Order 14-03 and Local Rule 72-5, the Motion has been assigned to this Court for determination. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, Local Rule 7-15, and General Order 08-05, the Court finds th at this matter is appropriate for decision without oral argument. The Court finds that Plaintiff's Motion to Recuse fails to set forth sufficient factual allegations to require disqualification pursuant to 28 U.S.C. §§ 144 and 455, or any evidence tending to show personal bias stemming from an extrajudicial source. Nor is there any basis to believe that any other ground for disqualification exists. Rather, it appears that Plaintiff simply disagrees with the Court's rulings. Accordingly, Plaintiff's Motion to Recuse 105 is denied. This Order applies in both Case No. ED CV 10-1727 PA (MRW) and Case No. ED CV 12-1866 PA (MRW). See document for details. (smo)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

ED CV 10-1727 PA (MRW)*
ED CV 12-1866 PA (MRW)

Title

Anthony Grissom v. County of Riverside

Present: The
Honorable

Date

February 19, 2015

PERCY ANDERSON, UNITED STATES DISTRICT JUDGE

Stephen Montes Kerr

Not Reported

N/A

Deputy Clerk

Court Reporter

Tape No.

Attorneys Present for Plaintiffs:

Attorneys Present for Defendants:

None

None

Proceedings:

IN CHAMBERS - COURT ORDER

Before the Court is a Motion to Recuse filed by plaintiff Anthony Grissom (“Plaintiff”) (Docket
No. 97 in Case No. ED CV 12-1866 PA (MRW)). Plaintiff seeks to disqualify United States Magistrate
Judge Michael R. Wilner. Plaintiff, who is appearing pro se, has two actions pending in this Court, Case
Nos. ED CV 10-1727 PA (MRW) and ED CV 12-1866 PA (MRW). The caption of Plaintiff’s Motion
appears to seek the disqualification of Magistrate Judge Wilner in both actions. In accordance with
General Order 14-03 and Local Rule 72-5, the Motion has been assigned to this Court for determination.
Pursuant to Rule 78 of the Federal Rules of Civil Procedure, Local Rule 7-15, and General Order 08-05,
the Court finds that this matter is appropriate for decision without oral argument.
The standard for disqualification of a judge is established by 28 U.S.C. §§ 144 and 455. Section
144 permits a party seeking disqualification to file a “timely and sufficient affidavit” setting forth “the
facts and reasons” for the party’s belief 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.” 28 U.S.C. § 144. The
affidavit must “state facts and the reasons for the belief that bias or prejudice exists.” Id.; see also 28
U.S.C. § 1746 (providing that wherever “any matter is required or permitted to be supported, evidenced,
established, or proved by the sworn . . . . affidavit . . . of the person making the same . . . such matter
may, with like force and effect, be supported . . . by the unsworn declaration . . . of such person which is
subscribed by him as true under penalty of perjury . . . .”). When determining the legal sufficiency of
the affidavit, “the factual allegations in the affidavit must be accepted as true,” although “general or
conclusory allegations will not support disqualification.” United States v. Zagari, 419 F. Supp. 494,
500-01 (N.D. Cal. 1976); see also Hayes v. National Football League, 463 F. Supp. 1174, 1179 (C.D.
Cal. 1979) (“Conclusory allegations . . . do not justify disqualification.”). The potentially applicable
provision of § 455 provides: “Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28
U.S.C. § 455(a); see also United States v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir. 1997) (“The
substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: ‘[W]hether a
reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might
reasonably be questioned.’ Ordinarily, the alleged bias must stem from an ‘extrajudicial source.’”)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

ED CV 10-1727 PA (MRW)*
ED CV 12-1866 PA (MRW)

Title

Date

February 19, 2015

Anthony Grissom v. County of Riverside

(quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) and Liteky v. United States, 510
U.S. 540, 554-56, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994)).
In Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994), the
Supreme Court clarified the interplay between allegations of impartiality, personal bias, and prejudice
under sections 455(a) and 455(b)(1):
First, judicial rulings alone almost never constitute a valid basis for a bias
or partiality motion. In and of themselves (i.e., apart from surrounding
comments or accompanying opinion), they cannot possibly show reliance
upon an extrajudicial source; and can only in the rarest circumstances
evidence the degree of favoritism or antagonism required . . . when no
extrajudicial source is involved. . . . Second, opinions formed by the
judge on the basis of facts introduced or events occurring in the course of
the current proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-seated favoritism
or antagonism that would make fair judgment impossible. Thus, judicial
remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge. They may do so if they reveal an
opinion that derives from an extrajudicial source; and they will do so if
they reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.
Id. at 555, 114 S. Ct. at 1157, 127 L. Ed. 2d 474.
Plaintiff contends that Magistrate Judge Wilner exhibited “undue bias and prejudice” when he
“joined plaintiffs [sic] two case[s] together” and denied Plaintiff’s requests for appointment of counsel.
Plaintiff’s asserted instances of bias are completely insufficient bases for disqualification. See Liteky,
510 U.S. at 555, 114 S. Ct. at 1157, 127 L. Ed. 2d 474. Although the Court’s review of the Docket does
not reveal a formal consolidation order, the Magistrate Judge did issue an Order Regarding Scheduling
in Civil Rights Cases on October 3, 2014, in which the Court referred to both cases in the same order.
Federal Rule of Civil Procedure 42 provides:
If actions before the court involve a common question of law or fact, the
court may: (1) join for hearing or trial any or all matters at issue in the
actions; (2) consolidate the actions; or (3) issue any other orders to avoid
unnecessary cost or delay.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.

ED CV 10-1727 PA (MRW)*
ED CV 12-1866 PA (MRW)

Title

Date

February 19, 2015

Anthony Grissom v. County of Riverside

Fed. R. Civ. P. 42. A court has “broad discretion under this rule to consolidate cases pending in the
same district.” Investors Research Co. v. U.S. Dist. Court, 877 F.2d 777 (9th Cir. 1989). Here, both of
Plaintiff’s actions involve claims against the County of Riverside and various Riverside County
Sheriff’s Department deputies alleging that Plaintiff suffered civil rights violations while Plaintiff was
incarcerated in the Riverside County Jail. Magistrate Judge Wilner has not abused his discretion under
Rule 42 by consolidating or otherwise coordinating these actions.
Similarly, Magistrate Judge Wilner has consistently applied the correct standard to Plaintiff’s
repeated requests for appointment of counsel. As Magistrate Judge Wilner has correctly and frequently
informed Plaintiff, there is no right to appointed counsel in a civil rights action. Rand v. Rowland, 113
F.3d 1520, 1525 (9th Cir. 1997). “The decision to appoint such counsel is within ‘the sound discretion
of the trial court and is granted only in exceptional circumstances.’” Agyeman v. Corrections Corp. of
America, 390 F.3d 1101, 1103 (9th Cir. 2004) (quoting Franklin v. Murphy, 745 F.2d 1221, 1236 (9th
Cir. 1984)). Magistrate Judge Wilner has not abused his discretion by correctly applying the applicable
standard to Plaintiff’s requests for appointment of counsel.
The Court concludes that Plaintiff is attempting to transform adverse rulings in this case into
unsupported charges of bias. If Plaintiff disagrees with the Court’s rulings, his remedy is to appeal
those rulings, not to seek the disqualification of the judge. See Mayes v. Leipziger, 729 F.2d 605, 607
(9th Cir. 1984) (“A judge’s previous adverse ruling alone is not sufficient bias.”).
The Court finds that Plaintiff’s Motion to Recuse fails to set forth sufficient factual allegations to
require disqualification pursuant to 28 U.S.C. §§ 144 and 455, or any evidence tending to show personal
bias stemming from an extrajudicial source. Nor is there any basis to believe that any other ground for
disqualification exists. Rather, it appears that Plaintiff simply disagrees with the Court’s rulings.
Accordingly, Plaintiff’s Motion to Recuse is denied. This Order applies in both Case No. ED CV 101727 PA (MRW) and Case No. ED CV 12-1866 PA (MRW).
IT IS SO ORDERED.

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