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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HARLEY McNEIL, 15-cv-1442-AWI GSA 12 Plaintiff, 13 14 15 16 17 v. COMMISSIONER OF SOCIAL SECURITY, ORDER DENYING PLAINTIFF’S MOTION TO RECUSE (Doc. 17) Defendant. 18 19 On November 2, 2016, Plaintiff, appearing pro se, filed a request that the undersigned be 20 disqualified “due to a conflict of interest because of proceedings and judgments involving 21 [Plaintiff’s] deceased son, Levi Lingenfelter.” (Doc. 17). This is the only sentence Plaintiff 22 articulated in his motion. The Court construed this pleading as a motion to recuse and on 23 November 15, 2016, ordered that no later than December 6, 2016, Plaintiff provide the Court 24 with additional facts and briefing. (Doc. 18). No supplemental briefing has been filed. 25 As noted in the previous order, the Court recognizes the name of Plaintiff’s son as a party 26 in a state court proceeding that the undersigned may have presided over several years ago. It is 27 well established that a judge must disqualify himself if “his impartiality might be reasonably 28 questioned,@ 28 U.S.C. ' 455(a), or if Ahe has a personal bias or prejudice concerning a party, or 1 1 personal knowledge of disputed evidentiary facts concerning the proceeding,” 28 U.S.C. ' 2 455(b)(1). However, “judicial rulings or information acquired by the court in its judicial capacity 3 will rarely support recusal.” United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) 4 (citing Litkey v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994)). The objective test for 5 determining whether recusal is required is whether a reasonable person with knowledge of all the 6 facts would conclude that the judge=s impartiality might reasonably be questioned. Johnson, 610 7 F.3d at 1147 (quotation marks and citation omitted); Pesnell v. Arsenault, 543 F.3d 1038. 1043 8 (9th Cir. 2008). “Adverse findings do not equate to bias,” and prior rulings in the proceeding, or 9 another proceeding are ordinarily insufficient to establish that recusal is required. Johnson, 610 10 F.3d at 1147-1148. Thus, Plaintiff’s disagreement with the Court’s judicial rulings in a case does 11 not constitute a valid basis for a bias or partiality motion. In re Focus Media, Inc., 378 F.3d 916, 12 930 (9th Cir. 2004) (citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147 (1994)). 13 Given the above, the fact that the undersigned may have presided over prior proceedings 14 involving the Plaintiff or his son is not by itself a basis for the Court’s recusal. Accordingly, 15 Plaintiff’s Motion for Recuse (Doc. 17) is DENIED. 16 IT IS SO ORDERED. 17 18 Dated: January 4, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 2

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