McNeil v. Commissioner of Social Security

Filing 18

ORDER for supplemental briefing signed by Magistrate Judge Gary S. Austin on 11/14/2016. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HARLEY McNEIL,

15-cv-1442-AWI GSA

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Plaintiff,

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v.
COMMISSIONER OF SOCIAL
SECURITY,

ORDER FOR SUPPLEMENTAL
BRIEFING

Defendant.

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On November 2, 2016, Plaintiff filed a request that the undersigned be disqualified “due

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to a conflict of interest because of proceedings and judgments involving [Plaintiff’s] deceased

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son, Levi Lingenfelter.” (Doc. 17). This is the only sentence Plaintiff articulated in support of

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his motion.

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The Court believes that the Plaintiff’s son may have been a party in a state court

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proceeding that the undersigned presided over several years ago. Plaintiff is advised that a judge

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must disqualify himself if “his impartiality might be reasonably questioned,@ 28 U.S.C. ' 455(a),

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or if Ahe has a personal bias or prejudice concerning a party, or personal knowledge of disputed

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evidentiary facts concerning the proceeding,” 28 U.S.C. ' 455(b)(1). “[J]udicial rulings or

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information acquired by the court in its judicial capacity will rarely support recusal.” United
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States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (citing Litkey v. United States, 510 U.S.

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540, 555, 114 S.Ct. 1147 (1994)). The objective test for determining whether recusal is required

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is whether a reasonable person with knowledge of all the facts would conclude that the judge=s

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impartiality might reasonably be questioned. Johnson, 610 F.3d at 1147 (quotation marks and

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citation omitted); Pesnell v. Arsenault, 543 F.3d 1038. 1043 (9th Cir. 2008). “Adverse findings

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do not equate to bias,” and prior rulings in the proceeding, or another proceeding are ordinarily

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insufficient to establish that recusal is required. Johnson, 610 F.3d at 1147-1148. Thus,

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Plaintiff’s disagreement with the Court’s judicial rulings in a case does not constitute a valid basis

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for a bias or partiality motion. In re Focus Media, Inc., 378 F.3d 916, 930 (9th Cir. 2004) (citing

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Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994)).
Given the above, the fact that the undersigned presided over prior proceedings involving

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the Plaintiff or his son is not by itself a basis for the Court’s recusal. However, given the limited

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information in the motion, the Court will give Plaintiff an opportunity to supplement his pleading

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if he so desires. Plaintiff shall file any additional pleading no later than December 6, 2016.

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Failure to file a supplemental brief may result in denial of this motion.

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IT IS SO ORDERED.

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Dated:

November 14, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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