Lopez v. Beard et al

Filing 11

ORDER DENYING Plaintiff's Motion to Disqualify Magistrate Judge Austin From Participation in This Case 7 , signed by District Judge Lawrence J. O'Neill on 10/24/13. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANDREW R. LOPEZ,

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Plaintiff,

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vs.
JEFFREY BEARD, et al.,

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Defendants.

1:13-cv-01556-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S
MOTION TO DISQUALIFY
MAGISTRATE JUDGE AUSTIN
FROM PARTICIPATION IN THIS
CASE
(Doc. 7.)

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I.

BACKGROUND

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Andrew R. Lopez (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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September 26, 2013. (Doc. 1.)

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On October 17, 2013, Plaintiff filed a motion to disqualify Magistrate Judge Gary S.

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Austin from participation in this case. (Doc. 7.)

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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

Legal Standard

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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,

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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).

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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 “the removal of Magistrate Judge Gary S. Austin from this case,

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including, but not limited to, settlement conferences, and addressing this motion.” Motion,

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Doc. 7 at 1:10-14 (emphasis in original). Plaintiff claims he has firsthand knowledge of Judge

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Austin’s anti-prisoner bias, through rulings by Judge Austin in Plaintiff’s prior cases and in

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other inmates’ cases.

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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. See Nilsson, 854

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F.2d at 1548. Plaintiff’s disagreement with the court=s rulings is not a legitimate ground for

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seeking disqualification.

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III.

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

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CONCLUSION

disqualification, filed on October 17, 2013, is DENIED.

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IT IS SO ORDERED.
Dated:

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/s/ Lawrence J. O’Neill

October 24, 2013

UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

b9ed48bb

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