Polk v. Lattimore et al

Filing 64

ORDER DENYING Plaintiff's 57 Motion for Disqualification Under 28 U.S.C. 144 signed by Magistrate Judge Gary S. Austin on 4/15/2015. (Sant Agata, S)

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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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vs.

1:12-cv-01156-AWI-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION FOR DISQUALIFICATION
UNDER 28 U.S.C. § 144
(Doc. 57.)

LATTIMORE, et al.,

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Defendants.

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I.

BACKGROUND

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Susan Mae Polk (APlaintiff@) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. ' 1983. On February 20, 2015, Plaintiff filed an Affidavit of Bias

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against Magistrate Judge Gary S. Austin under 28 U.S.C. §144. (Doc. 57.)

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II.

DISQUALIFICATION OF JUDGE - 28 U.S.C. § 144

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A.

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

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

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a personal bias or prejudice either against him or in favor of any adverse party, such judge shall

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proceed no further therein, but another judge shall be assigned to hear such proceeding.@ 28

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U.S.C. ' 144; see Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008); U.S. v. Johnson,

Legal Standard

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610 F.3d 1138, 1147 (9th Cir. 2010). Section 144 also provides that “[t]he affidavit shall state

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the facts and the reasons for the belief that bias and prejudice exists, ... [and a] party may only

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file one such affidavit in any case.” United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980).

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Section 144 expressly conditions relief upon the filing of a timely and legally sufficient

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affidavit. Id. (citing inter alia United States v. Azhocar, 581 F.2d 735, 738-40 (9th Cir. 1978),

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cert. denied 440 U.S. 907 (1979). “If the judge to whom a timely motion is directed determines

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that the accompanying affidavit specifically alleges facts stating grounds for recusal under

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section 144, the legal sufficiency of the affidavit has been established, and the motion must be

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referred to another judge for a determination of its merits.” Id. (citing Azhocar, 581 F.2d at

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738).

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The substantive standard is A>[W]hether a reasonable person with knowledge of all the

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facts would conclude that the judge's impartiality might reasonably be questioned.=@ Pesnell,

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543 F.3d at 1043 (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)).

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However, the bias must arise from an extra-judicial source and cannot be based solely on

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information gained in the course of the proceedings. Id. (citing Liteky v. United States, 510

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U.S. 540, 554-56 (1994). A>Judicial rulings alone almost never constitute a valid basis for a bias

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or partiality motion.=@ In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004) (quoting

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Liteky, 510 U.S. at 555). A>In and of themselves . . , they cannot possibly show reliance upon

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an extrajudicial source; and can only in the rarest circumstances evidence the degree of

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favoritism or antagonism required ... when no extrajudicial source is involved.=@ Id.
Plaintiff’s Motion

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B.

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Plaintiff has filed an affidavit that Magistrate Judge Gary S. Austin has a personal bias

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or prejudice against her. Plaintiff asserts that the judge was adversarial in his order dismissing

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her Third Amended Complaint and misstated material facts from her Third Amended

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Complaint. Plaintiff also claims that the judge has subjected her to a far more stringent

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pleading standard than is normally applied to a pro se prisoner plaintiff. Plaintiff also claims

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that the judge denied her rights to due process when he denied her motion for reconsideration

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instead of forwarding it to the district judge.
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C.

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Plaintiff has not presented any evidence that the Magistrate Judge has a personal bias

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against her from an extra-judicial source. As discussed above, a judge=s rulings while presiding

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over a case do not constitute extra-judicial conduct. In re Focus Media, Inc., 378 F.3d at 930.

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Plaintiff’s disagreement with the court=s rulings is not a legitimate ground for seeking

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disqualification.

Discussion

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Moreover, Judge Austin is a United States Magistrate Judge, and Section 144 applies

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only to district court judges. 28 U.S.C. § 144 (by its terms applicable only to the district

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courts); Liteky v. United States, 510 U.S. 540, ––––, 114 S.Ct. 1147, 1153, 127 L.Ed.2d 474

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(1994); see Bernard v. Coyne (In re Bernard), 31 F.3d 842, 843 n. 3 (9th Cir.1994) (circuit

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court judge not subject to recusal under section 144).

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Therefore, Plaintiff’s motion must be denied.

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III.

CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for

disqualification under 28 U.S.C. § 144, filed on February 20, 2015, is DENIED.

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IT IS SO ORDERED.
Dated:

April 15, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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