Polk v. Godina et al

Filing 39

ORDER Denying Plaintiff's Motions To Disqualify Magistrate Judge For Bias And Prejudice (ECF Nos. 32 , 35 ), signed by Magistrate Judge Barbara A. McAuliffe on 4/15/2015. (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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Plaintiff,

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v.

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GODINA, et al.,

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Defendants.

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Case No.: 1:12-cv-01094-LJO-BAM PC
ORDER DENYING PLAINTIFF’S MOTIONS TO
DISQUALIFY MAGISTRATE JUDGE FOR BIAS
AND PREJUDICE
(ECF Nos. 32, 35)

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I.

Introduction

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Plaintiff Susan Mae Polk (“Plaintiff”), a state prisoner proceeding pro se and in forma

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pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 6, 2012. Currently, there is

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no operative complaint on file. On February 20, 2015, and March 2, 2015, Plaintiff filed affidavits

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attesting to the purported bias and prejudice of the undersigned, United States Magistrate Judge

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Barbara A. McAuliffe. The Court construes the affidavits as a motion to disqualify, and the matter is

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submitted pursuant to Local Rule 230(l).

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II.

Motion for Disqualification

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A magistrate judge must disqualify himself if “his impartiality might be reasonably

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questioned,” 28 U.S.C. § 455(a), or if “he has a personal bias or prejudice concerning a party, or

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personal knowledge of disputed evidentiary facts concerning the proceeding,” 28 U.S.C.§ 455(b)(1).
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“[J]udicial rulings or information acquired by the court in its judicial capacity will rarely support

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recusal.” United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (citing Liteky v. United

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States, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994)).
The objective test for determining whether recusal is required is whether a reasonable person

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

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questioned. Johnson, 610 F.3d at 1147 (quotation marks and citation omitted); Pesnell v. Arsenault,

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543 F.3d 1038, 1043 (9th Cir. 2008). “Adverse findings do not equate to bias,” Johnson, 610 F.3d at

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1147, and in this instance, Plaintiff disagrees with the Court’s screening order, which does not support

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recusal.
Plaintiff also expressly seeks relief pursuant to 28 U.S.C. § 144. In relevant part, section 144

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states:
Whenever a party to any proceeding in a district court makes and files a
timely and sufficient affidavit 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, such judge shall proceed no further therein, but another judge shall be
assigned to hear such proceeding.

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The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the beginning of
the term at which the proceeding is to be heard, or good cause shall be shown for
failure to file it within such time. A party may file only one such affidavit in any
case. It shall be accompanied by a certificate of counsel of record stating that it is
made in good faith.

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28 U.S.C. § 144.

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If the judge to whom a timely motion is directed determines that the accompanying affidavit

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specifically alleges facts stating grounds for recusal under § 144, the motion must be referred to

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another judge for a determination of the merits. United States v. Sibla, 624 F.2d 864, 867 (9th Cir.

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1980). The judge to whom the motion is directed is to determine independently whether all the

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circumstances call for recusal, and such matter rests within the sound discretion of that judge. Sibla,

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624 F.2d at 868. Motions under §144 are directed to the judge before whom the matter is pending,

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which in this instance would be the undersigned. The Court assumes without deciding that Plaintiff’s

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declarations were timely filed.

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Having set forth the legal standard, the Court now examines Plaintiff’s affidavits.

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Plaintiff’s Affidavit

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Plaintiff contends that the undersigned made numerous errors in the order dismissing

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Plaintiff’s first amended complaint with leave to amend, including misquoting from the amended

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complaint, misstating material facts, creating false insinuations, omitting crucial elements of a claim,

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subjecting her to a more stringent pleading standard, misstating the law and not allowing her to join

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this action with Polk v. Pittman, 1:11-cv-00728-AWI-BAM (PC). Plaintiff also contends that the

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undersigned imposed an arbitrary 25-page limit on any amended complaint. (ECF No. 32, pp. 1-2, 4-

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7; ECF No. 35, pp. 2, 4-7.) Plaintiff’s allegations are not directed at the undersigned’s purported bias,

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but rather at challenging the screening order dismissing her first amended complaint with leave to

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amend that was issued on January 7, 2015. (ECF No. 25.) Plaintiff has not been prejudiced by the

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Court’s dismissal order as she has been granted leave to amend her claims.

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Plaintiff further suggests that the undersigned has exhibited bias by “making intrinsically

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derogatory comments, which waft in negative innuendoes unsupported by the record as a whole and

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which aren’t in fact true” and by adopting an adversarial posture. (ECF No. 32, p. 2.) Plaintiff has not

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identified any derogatory comments. Plaintiff’s disagreement with the undersigned’s findings and

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conclusions in the screening order is not sufficient to demonstrate bias or prejudice. The Court is

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required to screen complaints brought by a prisoner seeking relief against an officer or employee of a

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governmental entity and evaluate whether the prisoner has stated a claim that is facially plausible. 28

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U.S.C. §1915A(a); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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III.

Conclusion and Order

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff’s motions to disqualify the

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undersigned, filed on February 20 and March 2, 2015, are DENIED.

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IT IS SO ORDERED.

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Dated:

/s/ Barbara

April 15, 2015

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE
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