Solomon v. Felker et al

Filing 177

ORDER signed by Magistrate Judge Kendall J. Newman on 11/3/2015 DENYING plaintiff's 176 request for recusal. Plaintiff shall file his pretrial statement within 21 days; failure to file a pretrial statement within that time will result in dismissal of this action. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VINCENT SOLOMON,

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Plaintiff,

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No. 2: 08-cv-2544 KJN P

v.

ORDER

T. FELKER, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. This action is set for jury trial before the undersigned on February 1, 2016,

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as to plaintiff’s claim that defendant Statti made plaintiff sleep on the floor. On October 1, 2015,

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the undersigned ordered plaintiff to file his pretrial statement within twenty-one days. (ECF No.

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174.)
In response to the October 1, 2015 order, plaintiff filed a pleading requesting that this

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court and the Ninth Circuit Court of Appeals review his case. (ECF No. 176.) Plaintiff alleges

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that the undersigned is biased and requests a new judge with a “fresh set of eyes.” (Id.) Plaintiff

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goes on to argue that the court improperly granted summary judgment to the other defendants.

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(Id.) Plaintiff also appears to suggest that he was improperly charged a filing fee for an

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interlocutory appeal. (Id.)

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The undersigned construes plaintiff’s request for a new judge as a request for the

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undersigned to recuse himself. For the following reasons, this request is denied.

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A judge is required to disqualify himself if his impartiality might reasonably be

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questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice against a party, 28 U.S.C.

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§ 455(b)(1). Remarks made during the course of a judicial proceeding that are critical or hostile

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to a party or his case ordinarily will not support a bias or partiality claim unless they reveal an

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extrajudicial source for the opinion, or “such a high degree of favoritism or antagonism as to

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make fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 554 (1994.) The

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decision regarding disqualification is made by the judge whose impartiality is at issue. Bernard v.

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

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Where the source of alleged bias or prejudice is a judicial proceeding, plaintiff must show

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a disposition on the part of the judge that “is so extreme as to display clear inability to render fair

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judgment.” Liteky, 510 U.S. at 541. “Opinions formed by the judge on the basis of facts

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introduced or events occurring in the course of the current proceedings, or of prior proceedings,

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do not constitute a basis for a bias or partiality motion unless they display a deep-seated

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favoritism or antagonism that would make fair judgment impossible.” Id. at 555. Bias is not

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found where the judge has expressed anger or dissatisfaction or annoyance that are within the

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bounds of reasonable behavior. Id.
The undersigned’s actions in this case do not support disqualification. The actions taken

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were an appropriate response to filings. The undersigned’s rulings do not reflect an extreme

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disposition or deep-seated antagonism. They do not reflect animosity, partiality, or inability to

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render a fair judgment in the instant action. They do not indicate bias, personal or otherwise, or

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prejudice, personal or otherwise. Accordingly, plaintiff’s request for recusal is denied.

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Plaintiff’s claim that the court improperly granted summary judgment to the other

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defendants may be raised on appeal following the entry of judgment in this case. Plaintiff’s claim

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that he was improperly charged a filing fee for an interlocutory appeal should be raised with the

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Ninth Circuit.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for recusal is denied;

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2. Plaintiff shall file his pretrial statement within twenty-one days of the date of this

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order; failure to file a pretrial statement within that time will result in dismissal of this action.

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Dated: November 3, 2015

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Sol2544.ord(2)
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