McCoy v. Kelso, et al.

Filing 198

ORDER DENYING Plaintiff's 181 Motion for Disqualification signed by Magistrate Judge Stanley A. Boone on 11/8/2019. (Orozco, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSEPH RAYMOND MCCOY,

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Plaintiff,
v.
STRONACH, et al.,
Defendants.

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Case No.: 1:12-cv-000983-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR DISQUALIFICATION
[ECF No. 181]

Plaintiff Joseph Raymond McCoy is appearing pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983.
On October 17, 2019, Plaintiff filed a motion to disqualify the undersigned pursuant to 28

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U.S.C. § 455(a). Defendants filed an opposition on November 7, 2019. The Court deems the matter

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suitable for review without a reply from Plaintiff. Local Rule 230(l).

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I.

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DISCUSSION

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Under 28 U.S.C. § 455, a judge “shall disqualify himself in any proceeding in which his

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impartiality might reasonably be questioned,” including under circumstances where “he has a personal

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bias or prejudice concerning a party.” See 28 U.S.C. § 455(a), (b)(1). A motion under section 455 is

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addressed to, and must be decided by, the very judge whose impartiality is being questioned. Bernard

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v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). “Section 455 clearly contemplates that decisions with
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respect to disqualification should be made by the judge sitting in the case, and not by another judge.”

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Id. (quoting United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985)). “[S]ection 455 includes

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no provision for referral of the question of recusal to another judge; if the judge sitting on the case is

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aware of grounds for recusal under section 455, that judge has a duty to recuse himself or herself.”

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United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980). On the other hand, “in the absence of a

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legitimate reason to recuse himself, a judge should participate in cases assigned.” United States v.

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Holland, 519 F.3d 909, 912 (9th Cir. 2008).

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On September 13, 2019, Plaintiff filed an application for an order for enforcement of

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administrative agency judgment and request for judicial notice in the United States Court of Appeals

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for the Ninth Circuit, case number 15-17148. Plaintiff contends the filing divested this Court of

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jurisdiction and therefore the undersigned has no authority to proceed with the case. First, Plaintiff’s

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September 13, 2019, motion was denied by the Ninth Circuit on November 4, 2019. (ECF No. 194.)

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Second, Plaintiff has failed to demonstrate that the undersigned exhibits bias or prejudice towards him.

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Plaintiff’s allegations of bias or prejudice stem from the Court’s procedures and rulings. However,

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“[j]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky v.

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United States, 510 U.S. 540, 555 (1994). Accordingly, Plaintiff’s motion for disqualification must be

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denied.

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II.

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ORDER
Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motion for disqualification

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of the undersigned (ECF No. 181) is DENIED.

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IT IS SO ORDERED.

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Dated:

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November 8, 2019
UNITED STATES MAGISTRATE JUDGE

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