Curtis v. California Correctional Institution - Tehachapi, et al.

Filing 72

ORDER Denying Plaintiff's Request for Disqualification of the Undersigned re 49 , 53 , signed by Magistrate Judge Stanley A. Boone on 4/20/16. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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PARNELL CURTIS,

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Plaintiff,

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v.
CALIFORNIA CORRECTIONAL
INSTITUTION, et al.,

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Defendants.

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Case No.: 1:14-cv-00656-AWI-SAB (PC)
ORDER DENYING PLAINTIFF’S REQUEST
FOR DISQUALIFICATION OF THE
UNDERSIGNED
[ECF Nos. 49, 53]

Plaintiff Parnell Curtis is appearing pro se in this civil rights action pursuant to 42 U.S.C. §
1983.
On June 9, 2015, Findings and Recommendations were issued recommending that Plaintiff’s

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motion for a court order directing prison employees to provide his supplies be denied. (ECF No. 46.)

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Plaintiff filed objections on July 10, 2015, and therein sought disqualification of the undersigned and

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reassignment to a new magistrate judge. (ECF No. 49.) On August 3, 2015, the Findings and

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Recommendations were adopted in full, and Plaintiff’s request for disqualification was referred back

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to the undersigned for consideration. (ECF No. 53.)

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

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

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bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no
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further therein, but another judge shall be assigned to hearing such proceeding.” 28 U.S.C. §144; see

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also Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008); United States v. Johnson, 610 F.3d

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1138, 1147 (9th Cir. 2010). “If the judge to whom a timely motion is directed determines that the

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accompanying affidavit specifically alleges facts stating grounds for recusal under section 144, the

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legal sufficiency of the affidavit has been established, and the motion must be referred to another

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judge for a determination of its merits. Id., citing United States v. Azhocar, 581 F.2d 735, 738 (9th

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Cir. 1978).

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A judge “shall disqualify himself in any proceeding in which his impartiality might reasonably

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be questioned.” 28 U.S.C. § 455(a). A motion under § 455 is addressed to, and must be decided by,

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the very judge whose impartiality is being questioned.” Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir.

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1994). “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).

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Under both recusal statutes, the determination for disqualification is “whether a reasonable

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

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be questioned.” Pesnell v. Arsenault, 543 F.3d at 1043, quoting United States v. Hernandez, 109 F.3d

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1450, 14534 (9th Cir. 1997). For instance, a judge “shall” disqualify himself “[w]here he has a

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personal bias or prejudice concerning a party. . . .” 28 U.S.C. § 455(b)(1). However, the bias must

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arise from an extrajudicial source and cannot be based solely on information gained in the course of

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the proceedings. United States v. Hernandez, 109 F.3d at 1453, citing Liteky v. United States, 510

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U.S. 540, 554-556 (1994). “Judicial rulings alone almost never constitute a valid basis for a bias or

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partiality motion.” In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004), quoting Liteky, 510

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U.S. at 555.

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Here, Plaintiff provides no basis for disqualification other than his disagreement with certain

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rulings made by the assigned magistrate judge. Plaintiff’s objection and disagreement with certain

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orders and rulings does no in and of itself demonstrate bias against him or favoritism toward

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Defendants. See, e.g., Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 891 (2009) (there is a

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“presumption of honesty and integrity in those serving as adjudicators.”) (citing Withrow v. Larkin,
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421 U.S. 35, 47 (1975)). Accordingly, Plaintiff’s request for disqualification of the undersigned is

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DENIED.

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IT IS SO ORDERED.

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Dated:

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April 20, 2016
UNITED STATES MAGISTRATE JUDGE

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