Sanders v. Matthew et al

Filing 38

MEMORANDUM DECISION and ORDER Denying 37 Motion for Disqualification/Recusal signed by Chief Judge Lawrence J. O'Neill on 06/08/2017. (Flores, E)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PHILIP SANDERS,

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1:15-cv-00395-LJO-EPG
Plaintiff,

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v.

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MEMORANDUM DECISION AND
ORDER DENYING MOTION FOR
DISQUALIFICATION/RECUSAL (Doc.
37)

MATTHEW, et al.,

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Defendants.

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Plaintiff Phillip Sanders, who is proceeding pro se and in forma pauperis in this matter, has

14 moved to disqualify the undersigned from this case. Doc. 37. A judge is required to disqualify himself if
15 his impartiality might reasonably be questioned. 28 U.S.C. § 455(a). A judge shall also disqualify
16 himself if he has “personal knowledge of disputed evidentiary facts concerning the proceeding.” 28
17 U.S.C. § 455(b)(1). The decision regarding disqualification is made by the judge whose impartiality is at
18 issue. Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). The Supreme Court has recognized that:
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[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality motion. In and of themselves (i.e., apart from surrounding
comments or accompanying opinion), they cannot possibly show reliance
upon an extrajudicial source; and can only in the rarest circumstances
evidence the degree of favoritism or antagonism required ... when no
extrajudicial source is involved. Almost invariably, they are proper
grounds for appeal, not for recusal.

23 Liteky v. United States, 510 U.S. 540, 555 (1994) (citation omitted). “The test is ‘whether a reasonable
24 person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be
25 questioned.” United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000) (quoting United States v.
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Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)). “Frivolous and improperly based suggestions that a

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judge recuse should be firmly declined.” Maier v. Orr, 758 F.2d 1578, 1583 (9th Cir. 1985) (citations

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omitted).

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Here, Plaintiff suggests the undersigned should recuse himself because of rulings made in a prior

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case brought by Plaintiff. Specifically, Plaintiff points to a ruling dating to 2006, in which the

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undersigned stated:
This Court is concerned that plaintiff has brought this action in absence of
good faith and attempts to take advantage of cost-free filing to vex
defendants. In the past several months, plaintiff has filed several other
actions which likewise appear to attempt to vex law enforcement
personnel with whom he has had contact. Such attempt to vex provides
further grounds to dismiss this action.

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Sanders v. Diaz, 1:06-cv-1740-AWI-LJO, Doc. 8 at 5. That ruling was based on “facts introduced or
evidence occurring in the course of the current proceedings or of prior proceedings,” which “almost

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never constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555. The Supreme
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Court has explained the rare circumstances in which the exception to that rule may apply. Statements
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based on facts or evidence gathered during the course of judicial proceedings “may do so if they reveal

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an opinion that derives from an extrajudicial source; and they will do so if they reveal such a high
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degree of favoritism or antagonism as to make fair judgment impossible.” Id.

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An example of the latter (and perhaps of the former as well) is the
statement that was alleged to have been made by the District Judge in
Berger v. United States, 255 U.S. 22 (1921), a World War I espionage
case against German-American defendants: “One must have a very
judicial mind, indeed, not [to be] prejudiced against the German
Americans” because their “hearts are reeking with disloyalty.” Id., at 28
(internal quotation marks omitted). Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of what imperfect men and women,
even after having been confirmed as federal judges, sometimes display. A
judge’s ordinary efforts at courtroom administration—even a stern and
short-tempered judge's ordinary efforts at courtroom administration—
remain immune.

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Id. at 555-56.
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The statement made by the undersigned in the Diaz case is not of the nature that would warrant

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disqualification or recusal, and Plaintiff has not pointed to any other basis for the undersigned to be

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disqualified or recused from this matter.

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Accordingly, the motion for disqualification/recusal is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

June 8, 2017

UNITED STATES CHIEF DISTRICT JUDGE
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