Sullivan v. Biter et.al.

Filing 40

ORDER Denying 39 Plaintiff's Motion to Disqualify Magistrate Judge Austin from Participation in this Case, signed by District Judge Anthony W. Ishii on 3/6/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. SULLIVAN,

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Plaintiff,

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vs.
M. D. BITER, et al.,

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Defendants.

1:12-cv-01662-AWI-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION TO DISQUALIFY
MAGISTRATE JUDGE AUSTIN
FROM PARTICIPATION IN THIS
CASE
(Doc. 39.)

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I.

BACKGROUND

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Michael J. Sullivan (APlaintiff@) is a state prisoner proceeding pro se in this civil rights

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action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint commencing this action on

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June 28, 2012. (Doc. 1.)

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On March 3, 2014, Plaintiff filed a motion to disqualify Magistrate Judge Gary S.

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Austin from participation in this case. (Doc. 39.)

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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

Legal Standard

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

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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 requests a ruling by District Judge Anthony W. Ishii on his motion to

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disqualify Magistrate Judge Gary S. Austin from participation in this case, under 28 U.S.C. §

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455.1 However, a motion under § 455 is addressed to, and must be decided by, the very judge

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Under 28 U.S.C. ' 455(a), A[a]ny ... judge ... shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.@ Pesnell, 543 F.3d at 1043 (emphasis added). 28 U.S.C. § 455(b)
provides in relevant part, “[h]e shall also disqualify himself in the following circumstances: [w]here he has a
personal bias or prejudice concerning a party ...” 28 U.S.C. §455(b)(1) (emphasis added).
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whose impartiality is being questioned.” Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994).

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“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)). “[S]ection 455 includes no provision for

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referral of the question of recusal to another judge; if the judge sitting on the case is aware of

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

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Sibla, 624 F.2d at 868 (citing see, e.g., Nicodemus v. Chrysler Corp., 596 F.2d 152, 157 & n.10

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(6th Cir. 1979)). Because Plaintiff clearly seeks a ruling by the District Judge, the court

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construes Plaintiff’s motion as a motion under 28 U.S.C. § 144, cited above.

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Plaintiff argues that Magistrate Judge Gary S. Austin harbors bias and prejudice against

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Plaintiff and is partial to the Defendants.

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disregarded Plaintiff’s prior motion to disqualify him and instead retaliated against Plaintiff by

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dismissing the First Amended Complaint and entering findings and recommendations to deny

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Plaintiff’s motions for preliminary injunction and temporary restraining order (TRO). Plaintiff

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argues that the Magistrate Judge’s rulings were contrary to controlling legal authority.2

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Plaintiff also maintains that Judge Austin has refused to hear and resolve his motions for

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preliminary injunctive relief, therefore becoming an advocate for Defendants, subjecting

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Plaintiff to pain and bodily harm and denying him medical care. Plaintiff argues that Judge

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Austin’s actions were motivated by bias and prejudice personally against Plaintiff and against

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pro se litigants in general, and were designed to frustrate and discourage Plaintiff, making it

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impossible for him to prosecute his lawsuit. Plaintiff argues that Judge Austin forced him to

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refile his complaint and refile whole new sets of his motions for preliminary injunction and

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TRO, after the case was transferred from the Northern District. Now Plaintiff is forced to file a

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third complaint under the threat of barring him from proceeding with this case. Plaintiff

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contends he has been subject to persecution and discrimination. Plaintiff also argues that his

Plaintiff maintains that Judge Austin totally

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Plaintiff has also filed a motion for reconsideration of the Magistrate Judge’s order and the findings and
recommendations, which is pending. (Doc. 36.)
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motion for appointment of counsel should not have been decided “merely” by a Magistrate

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Judge. Motion, Doc. 39 at 5:15.

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C.

Discussion

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Plaintiff=s motion for disqualification must be denied. The Magistrate Judge has the

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authority to rule on pretrial matters pursuant to 28 U.S.C. ' 636(b)(1) and Local Rule 302.

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Plaintiff has not supported his motion with any evidence that the Magistrate Judge has a

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personal bias against Plaintiff from an extra-judicial source. As discussed above, a judge=s

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rulings while presiding over a case do not constitute extra-judicial conduct. In re Focus Media,

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Inc., 378 F.3d at 930. Plaintiff’s disagreement with the court=s rulings is not a legitimate

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ground for seeking disqualification.

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III.

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

disqualification, filed on March 3, 2014, is DENIED.

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IT IS SO ORDERED.
Dated: March 6, 2014
SENIOR DISTRICT JUDGE

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