(HC) Thomas v. Foss

Filing 24

ORDER Denying 22 Motion for Recusal, signed by Chief Judge Lawrence J. O'Neill on 6/12/19. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EDWARD THOMAS,

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No. 1:18-cv-01496-LJO-SKO (HC)

Petitioner,

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v.

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T. FOSS,

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ORDER DENYING MOTION FOR
RECUSAL
(Doc. 22)
Respondent.

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Petitioner is a state prisoner proceeding in propria persona with a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
On October 5, 2018, Petitioner filed the instant habeas petition in this Court. Respondent

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moved to dismiss the petition on January 22, 2019. Petitioner filed an opposition on March 6,

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2019, and Respondent filed a reply on March 12, 2019. On April 8, 2019, the Magistrate Judge

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issued Findings and Recommendations to grant the motion to dismiss the petition in part and to

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summarily deny the petition in part. On April 23, 2019, Petitioner was granted a 35-day extension

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of time to file objections. To date, no objections have been filed.

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On June 6, 2019, Petitioner filed a motion for recusal.
DISCUSSION
As grounds for disqualification or recusal, Petitioner contends that the District Judge and
Magistrate Judge are biased against him. He complains that a previous case, Case No. 1:16-cv1

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01393-LJO-SKO (PC), was screened and dismissed improperly. He states he filed a judicial

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misconduct complaint in the Ninth Circuit on September 7, 2017, as a result. He contends he

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cannot obtain a fair result because of the undersigned’s and the Magistrate Judge’s purported bias

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and prejudice.

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Disqualification is required if a party demonstrates that that the judge’s impartiality might

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reasonably be questioned, 28 U.S.C. § 455(a), or the judge has a personal bias or prejudice

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concerning a party, 28 U.S.C. § 455(b)(1). Recusal is required only if the judge’s bias is 1)

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directed against a party; 2) stems from an extrajudicial source; and 3) is such as a reasonable

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person knowing all the facts would conclude that the judge’s impartiality might reasonably be

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questioned. Liteky v. United States, 510 U.S. 540, 545-546 (1994); United States v. Studley, 783

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F.2d 934, 939 (9th Cir. 1986); United States v. Bell, 79 F.Supp.2d 1169, 1173 (E.D. Cal. 1999).

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A judge’s rulings while presiding over a case do not constitute extra-judicial conduct. Nilsson, et

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al., v. Louisiana Hydrolec, 854 F.2d 1538, 1548 (9th Cir. 1988). A motion to disqualify a judge

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pursuant to § 455 is decided by the judge whom the moving party wishes to disqualify. In re

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Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994).

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Here, Petitioner has not met the requirements for recusal or disqualification. First, the

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alleged bias and prejudice do not stem from an extrajudicial source, but rather from Petitioner’s

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own history as a litigant before these particular judges. Second, and more significantly, the mere

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fact that a judge’s ruling in other cases went against Petitioner’s interests does not reflect either

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bias or prejudice. Petitioner complains of the previous dismissal but he does not demonstrate that

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it was legally incorrect. He simply complains that the ruling was adverse to him. Under this

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logic, however, any party who returns to federal court following an unfavorable result in an

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earlier case is entitled to have a different judge solely because the result in the earlier case was

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unfavorable. This is not and has never been the law regarding recusals and disqualifications. The

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Court is unaware of any case that imputes bias or prejudice from the mere fact of an earlier

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unfavorable result. Finally, based on the foregoing, no reasonable person knowing all of the

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above facts would conclude that the Court’s impartiality could be reasonably questioned. Liteky,

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510 U.S. at 545-546.
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ORDER
For the foregoing reasons, it is HEREBY ORDERED that Petitioner’s motion for recusal
(Doc. 22) is DENIED.

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IT IS SO ORDERED.
Dated:

/s/ Lawrence J. O’Neill _____

June 12, 2019

UNITED STATES CHIEF DISTRICT JUDGE
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