McNeil v. Commissioner of Social Security
Filing
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ORDER DENYING PLAINTIFF'S MOTION TO RECUSE (Doc. 17 ): Plaintiff's Motion for Recuse is DENIED. Signed by Magistrate Judge Gary S. Austin on 1/4/2017. (Valdez, E)
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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 DENYING PLAINTIFF’S
MOTION TO RECUSE
(Doc. 17)
Defendant.
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On November 2, 2016, Plaintiff, appearing pro se, filed a request that the undersigned be
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disqualified “due to a conflict of interest because of proceedings and judgments involving
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[Plaintiff’s] deceased son, Levi Lingenfelter.” (Doc. 17). This is the only sentence Plaintiff
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articulated in his motion. The Court construed this pleading as a motion to recuse and on
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November 15, 2016, ordered that no later than December 6, 2016, Plaintiff provide the Court
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with additional facts and briefing. (Doc. 18). No supplemental briefing has been filed.
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As noted in the previous order, the Court recognizes the name of Plaintiff’s son as a party
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in a state court proceeding that the undersigned may have presided over several years ago. It is
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well established that a judge must disqualify himself if “his impartiality might be reasonably
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questioned,@ 28 U.S.C. ' 455(a), or if Ahe has a personal bias or prejudice concerning a party, or
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personal knowledge of disputed evidentiary facts concerning the proceeding,” 28 U.S.C. '
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455(b)(1). However, “judicial rulings or information acquired by the court in its judicial capacity
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will rarely support recusal.” United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010)
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(citing Litkey v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994)). The objective test for
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determining whether recusal is required is whether a reasonable person with knowledge of all the
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facts would conclude that the judge=s impartiality might reasonably be questioned. Johnson, 610
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F.3d at 1147 (quotation marks and citation omitted); Pesnell v. Arsenault, 543 F.3d 1038. 1043
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(9th Cir. 2008). “Adverse findings do not equate to bias,” and prior rulings in the proceeding, or
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another proceeding are ordinarily insufficient to establish that recusal is required. Johnson, 610
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F.3d at 1147-1148. Thus, Plaintiff’s disagreement with the Court’s judicial rulings in a case does
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not constitute a valid basis for a bias or partiality motion. In re Focus Media, Inc., 378 F.3d 916,
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930 (9th Cir. 2004) (citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994)).
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Given the above, the fact that the undersigned may have presided over prior proceedings
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involving the Plaintiff or his son is not by itself a basis for the Court’s recusal. Accordingly,
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Plaintiff’s Motion for Recuse (Doc. 17) is DENIED.
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IT IS SO ORDERED.
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Dated:
January 4, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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