McNeil v. Commissioner of Social Security

Filing 19

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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