Gregory Sylvester Rideau Jr v. Mark D Greenberg et al

Filing 23

MINUTES: (In Chambers) Order DENYING Plaintiffs Motions to Disqualify 17 21 : Based on the foregoing, the motions for disqualification are DENIED IT IS SO ORDERED by Judge Philip S. Gutierrez. (ir)

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

EDCV 11-1698 GW (DTB)

Title

Gregory Sylvester Rideau, Jr. v. Mark D. Greenberg, et al.

Present:

Date

January 17, 2012

The Honorable Philip S. Gutierrez, United States District Judge

Wendy K. Hernandez
Deputy Clerk

Not Present
Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present
Proceedings:

n/a
Tape No.

Not Present

(In Chambers) Order DENYING Plaintiff’s Motions to Disqualify

Before the Court are Plaintiff Gregory Sylvester Rideau, Jr.’s (“Plaintiff”) motions to
disqualify United States District Judge George H. Wu and United States Magistrate Judge David
T. Bristow. Dkts. # 17, 21. The Court finds the matter appropriate for decision without oral
argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the moving papers, the Court
DENIES Plaintiff’s motions.
I.

Background

Plaintiff, who is currently incarcerated at Calipatria State Prison in Calipatria, California,
filed this action for violation of his civil rights. See Compl. at 1. Plaintiff, proceeding pro se,
named as defendants Appellate Defenders, Inc., the County of San Bernardino, County Clerk
Kristie Richard, Court Reporters Montez, Heishman, L. Millsap, and Meekins, and Mark
Greenberg, his court-appointed attorney. Compl. at 2-3. The gravamen of Plaintiff’s claims
appears to be that defendants conspired to conceal the transcripts from Plaintiff’s sentencing
hearing. Compl. at 3.
Magistrate Judge Bristow reviewed the Complaint prior to ordering service, in accordance
with the Prison Litigation Reform Act of 1995. See id. at 2:15-20; see also 28 U.S.C. §
1915(e)(2). Magistrate Judge Bristow dismissed the Complaint, with leave to amend, for failure
to state a federal civil rights claim against Defendants County of San Bernardino and County
Clerk Kristie Richard. See Dkt. # 10 at 4:14-16.

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

EDCV 11-1698 GW (DTB)

Date

Title

January 17, 2012

Gregory Sylvester Rideau, Jr. v. Mark D. Greenberg, et al.

Plaintiff thereafter filed a First Amended Complaint. See Dkt. # 12. The First Amended
Complaint alleged substantially the same allegations as the original Complaint. See FAC at 310. The First Amended Complaint named as Defendants: Court Reporters C. Heishman, L.
Millsap, C. Montez, and L. Meekins; California Court of Appeal Justices Art W. McKinster,
Betty Ann Richli, and Barton C. Grant; and Plaintiff’s court-appointed attorney Mark
Greenberg. Magistrate Judge Bristow dismissed the First Amended Complaint, with leave to
amend, for failure to state an adequate federal civil rights claim against Defendant Court
Reporters Heishman, Millsap, Montez, and Meekins. See Dkt. # 14 at 5:2-6:11. Additionally,
Magistrate Judge Bristow found Defendants McKinster, Richli, and Grant were immune from
suit under the doctrine of judicial immunity. See id. at 6:13-7:13.
On December 9, 2011, Plaintiff filed an ex parte application with District Court Judge
Wu, in which Plaintiff requested Judge Wu appoint a different Magistrate Judge to hear his case.
See Dkt. # 13. Plaintiff argued Magistrate Judge Bristow should be disqualified because he had
previously issued a report and recommendation on a petition for habeas corpus filed by Plaintiff.
See id. at 2. Judge Wu denied the ex parte application. See Dkt. # 15. Judge Wu found that
Plaintiff had not met the standard for disqualification because he failed to show any “deep-seated
favoritism or antagonism” on the part of Magistrate Judge Bristow. See id. at 2 (quoting United
States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997)).
On January 5, 2012, Plaintiff filed a Second Amended Complaint. Dkt. # 16. On the
same day, Plaintiff also filed an ex parte application for appointment of “another district and
magistrate court judge over this action due to conflict of interest.” See Dkt. # 17 at 1. Plaintiff
filed another ex parte application on January 11, 2012, entitled “Ex Parte Application Affidavit
of Gregory Sylvester Rideau, Jr., the Plaintiff for Support in His Request for Another Magistrate
and District Judge in this Action.” See Dkt. # 21. Both of Plaintiff’s ex parte applications were
construed as motions to disqualify and, pursuant to General Order 08-05 and Local Rule 72-5,
the motions were referred to United States District Judge Philip S. Gutierrez for consideration.
See Dkts. # 20, 22.
II.

Legal Standard

Motions for disqualification are governed by 28 U.S.C. § 144 and 28 U.S.C. § 455. See
Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). Under 28 U.S.C. § 144, if a party
demonstrates that “the judge before whom the matter is pending has a personal bias or prejudice

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

EDCV 11-1698 GW (DTB)

Date

Title

January 17, 2012

Gregory Sylvester Rideau, Jr. v. Mark D. Greenberg, et al.

either against him or in favor of any adverse party, such judge shall proceed no further therein,
but another judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144. Similarly, 28
U.S.C. § 455 provides that a judge “shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned” and in proceedings in which “he has a personal
bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1).
The substantive standard under these statutes “is whether a reasonable person with
knowledge of all the facts would conclude that the judge’s impartiality might reasonably be
questioned.” Pesnell, 543 F.3d at 1043. Generally, “a judge’s partiality must be shown to be
based on information from extrajudicial sources, although sometimes, albeit rarely,
predispositions developed during the course of a trial will suffice.” F.J. Hanshaw Enters., Inc. v.
Emerald River Dev., Inc., 244 F.3d 1128, 1144-45 (9th Cir. 2001) (internal quotations and
citations omitted); Pesnell, 543 F.3d at 1043. Thus, judicial rulings alone—apart from
surrounding comments or accompanying opinions—almost never constitute valid grounds for
disqualification. See Liteky v. United States, 510 U.S. 540, 556 (1994).
III.

Discussion

Plaintiff’s ex parte application, memorandum of points and authorities, and affidavit all
make similar claims. See Dkts. # 17, 18, 21. First, Plaintiff argues Judge Wu and Magistrate
Judge Bristow violated Plaintiff’s rights through their decision on Plaintiff’s habeas corpus
petition. See Dkt. # 17 at 2:6-23. Second, Plaintiff argues that in this civil rights case he has had
to amend his complaint twice “without good cause.” Id. at 3:1-3.
Plaintiff’s arguments fail to meet the threshold for disqualification. The underlying theme
in all of Plaintiff’s arguments is disagreement with the rulings in both his habeas hearing and his
current civil rights action. A judge is not biased or prejudiced for simply having presided over a
previous matter involving a party. See Liteky, 510 U.S. at 551 (“Also not subject to deprecatory
characterization as ‘bias’ or ‘prejudice’ are opinions held by judges as a result of what they
learned in earlier proceedings.”). Furthermore, Plaintiff’s dissatisfaction with the rulings in his
current civil rights case are insufficient grounds for disqualification. See id. (“[J]udicial rulings
alone almost never constitute a valid basis for a bias or partiality motion.”). Plaintiff fails to
present any extrajudicial information to raise any questions of personal bias or prejudice. As

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

EDCV 11-1698 GW (DTB)

Date

Title

January 17, 2012

Gregory Sylvester Rideau, Jr. v. Mark D. Greenberg, et al.

Plaintiff fails to provide a reasonable basis for questioning the impartiality of Judge Wu or
Magistrate Judge Bristow, the Court DENIES Plaintiff’s motions.
IV.

Conclusion
Based on the foregoing, the motions for disqualification are DENIED.
IT IS SO ORDERED.

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