Powell v. Madden, et al.

Filing 65

ORDER Denying Petition for Recusal of Presiding Judge at Docket 63 , signed by Chief Judge Ralph R. Beistline on 6/7/14. (Verduzco, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
TONY EDWARD POWELL,
Case No. 1:13-cv-00057-RRB
Plaintiff,
vs.
MADDEN, et al.,

ORDER DENYING PETITION
FOR RECUSAL OF PRESIDING
JUDGE AT DOCKET 63

Defendants.

At Docket 63 Plaintiff Tony Edward Powell, a federal prisoner appearing pro se,
filed a Petition for Recusal of Presiding Judge. His motion is based upon 28 U.S.C. §§ 144
and 455. For the reasons that follow, the Court DENIES Powell’s request.
In order to show a violation of § 144, Powell must show that the bias or prejudice
of this court is twofold: (1) personal, i.e., directed against the party, and (2) extra-judicial.1
Essentially, the same standard applies to § 455.2 The fatal deficiency in Powell’s request
for recusal is that it is based solely upon his disagreement with judicial rulings made in the
course of these proceedings. The Supreme Court has made clear that judicial rulings may
constitute bias “only in the rarest circumstances . . . [where] they display a deep-seated

1

Berger v United States, 255 U.S. 22, 31 (1921).

2

United States v. Hernandez, 109 F.3d 1450, 1453–54 (9th Cir. 1997) (citing
and quoting Liteky v. United States, 510 U.S. 540, 544–46 (1994)).
ORDER DENYING MOTION AT DOCKET 63
Powell v. Madden, 1:13-cv-00057-RRB – 1

favoritism or antagonism that would make fair judgment impossible.”3 Adverse rulings,
standing alone, do not constitute the requisite bias.4 To the extent that Powell alleges that
this court “has either previously worked with the penal system, or has friends and relations
that work with the prison penal system,” it is based upon conjecture and surmise,
conclusory, and devoid any factual support. In short, Powell has failed to provide a basis
for recusal as a matter of law.
The Court reminds Powell that, although he is proceeding pro se and the Court has,
and will continue, to provide him considerable latitude,5 Powell must nonetheless follow the
rules of practice and procedure.
Accordingly, the Petition for Recusal of Presiding Judge at Docket 63 is DENIED.
IT IS SO ORDERED this 7th day of June, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

3

Liteky, 510 U.S. at 555.

4

Id. at 554–56; Ex parte American Steel Barrel Co., 230 U.S. 35, 44 (1913)
(stating that the statute was “never intended to enable a discontented litigant oust a judge
because of adverse rulings made, for such rulings are reviewable otherwise”); see United
States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983).
5

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison,
620 F.3d 952, 958 (9th Cir. 2010).
ORDER DENYING MOTION AT DOCKET 63
Powell v. Madden, 1:13-cv-00057-RRB – 2