Tung v. Hartley et al

Filing 16

ORDER DENYING 8 Motion to Recuse, Signed by Judge Oliver W. Wanger on 02/09/2009. (Arellano, S.)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 Plaintiff has filed a motion to disqualify the undersigned from this case. Plaintiff's sole ground for recusal is an adverse ruling in another case brought by Plaintiff (CV F 95 5362 OWW HGB). In that case, Plaintiff's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was denied. The substantive standard for recusal, whether sought under 28 U.S.C. §144 or §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." United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) citing Unites States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (quotation omitted). The alleged bias must stem from and "extrajudicial source." Liteky v. United States, 510 U.S. 540 (1994). "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Id. at 555; Poland v. Stewart, 92 F.3d 881 (9th Cir. 1996). JAMES HARTLEY, et al., Defendants. vs. BALWINDER SINGH TUNG, Plaintiff, 1: 08 CV 00457 OWW WMW PC ORDER RE MOTION (DOC 8) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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"[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of 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." United States v. Conforte, 624 F.2d 869, 882 (9th Cir. 1980), cert. denied, 449 U.S. 1012 (1980) (a judge's views on legal issues may not serve as a basis for motions to disqualify). Plaintiff seeks recusal on the grounds of bias and prejudice. Plaintiff's conclusory allegations of bias fail to establish legally sufficient grounds for recusal. See Yagman v. Republic Ins., 987 F.2d 622, 626-27 (9th Cir. 1993)(concluding that speculative assertions of invidious motive are insufficient to show judicial bias). The Court finds that Plaintiff's motion fails to meet the standard set forth above. That Plaintiff received an unfavorable ruling does not demonstrate bias. Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to recuse the undersigned is denied. IT IS SO ORDERED. Dated: February 9, 2009 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE

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