Bishop v. Harrington et al

Filing 52

ORDER Denying 51 Plaintiff's Motion for Disqualification, signed by Magistrate Judge Stanley A. Boone on 6/16/15. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT BISHOP,

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Plaintiff,

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v.
KELLY HARRINGTON, et al.,

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Defendants.

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Case No.: 1:11-cv-00094-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR DISQUALIFICATION
[ECF No. 51]

Plaintiff Robert Bishop is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), Plaintiff consented to the jurisdiction of

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the United States Magistrate Judge on January 26, 2011. Local Rule 302.

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This action is proceeding on Plaintiff’s claim of retaliation against Defendants Castro, Horton,

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Sclafani, Hudson, Tyson, Soto, Harrington, Tarnoff and Biter. On March 17, 2015, the Court directed

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Plaintiff to complete and return the necessary service of process documents (which included all CDCR

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Form 602 documentation submitted in relation to this case) for service by the United States marshal.

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(ECF No. 45.)
On June 15, 2015, Plaintiff filed a request to disqualify the undersigned under 28 U.S.C. §

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455.1 (ECF No. 51.)

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Plaintiff filed the same motion in 1:15-cv-00273-SAB (PC), Robert Bishop v. Raul Lopez, et.al.,

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Under 28 U.S.C. § 144, “[W]henever a party to any proceeding in a district court makes and

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files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal

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bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no

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further therein, but another judge shall be assigned to hearing such proceeding.” 28 U.S.C. §144; see

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also Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008); United States v. Johnson, 610 F.3d

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1138, 1147 (9th Cir. 2010). “If the judge to whom a timely motion is directed determines that the

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accompanying affidavit specifically alleges facts stating grounds for recusal under section 144, the

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legal sufficiency of the affidavit has been established, and the motion must be referred to another

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judge for a determination of its merits. Id., citing United States v. Azhocar, 581 F.2d 735, 738 (9th

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Cir. 1978).
A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably

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be questioned.” 28 U.S.C. § 455(a). A motion under § 455 is addressed to, and must be decided by,

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the very judge whose impartiality is being questioned.” Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir.

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1994). “Section 455 clearly contemplates that decisions with respect to disqualification should be

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made by the judge sitting in the case, and not by another judge.” Id., quoting United States v.

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Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985).

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Under both recusal statutes, the determination for disqualification is “whether a reasonable

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person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably

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be questioned.” Pesnell v. Arsenault, 543 F.3d at 1043, quoting United States v. Hernandez, 109 F.3d

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1450, 14534 (9th Cir. 1997). For instance, a judge “shall” disqualify himself “[w]here he has a

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personal bias or prejudice concerning a party. . . .” 28 U.S.C. § 455(b)(1). However, the bias must

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arise from an extrajudicial source and cannot be based solely on information gained in the course of

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the proceedings. United States v. Hernandez, 109 F.3d at 1453, citing Liteky v. United States, 510

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U.S. 540, 554-556 (1994). “Judicial rulings alone almost never constitute a valid basis for a bias or

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partiality motion.” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004), quoting Liteky, 510

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U.S. at 555.

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Here, Plaintiff contends that the submission of such documentation allows “defendants to raise
defensive arguments that previously may not have been raised or argued.” (Motion at 1.) Plaintiff
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fails to demonstrate that the undersigned magistrate judge is biased against him or that the undersigned

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favors Defendants. Plaintiff’s objection to the submission of his 602 inmate grievances does not

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demonstrate bias against him or favoritism toward Defendants. The Court directed submission of the

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relevant 602 documentation related to this case for no other purpose than to assist the United States

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marshal in serving the appropriate Defendants with the complaint. This court has found from previous

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matters that the inclusion of 602 information allows for a quicker turn around in getting the true

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defendant served by the United States marshal as additional information, not found in a complaint, is

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often found in the 602. Further, defendants have access to Plaintiff’s 602’s and therefore

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"disclosure” does not result in any prejudice to the Plaintiff. There is no merit to Plaintiff’s claim that

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Defendants may not raise by way of affirmative defense-exhaustion of the administrative remedies.

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Accordingly, Plaintiff’s motion for disqualification is DENIED.

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IT IS SO ORDERED.

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Dated:

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June 16, 2015
UNITED STATES MAGISTRATE JUDGE

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