Watts v. Ramos, et al

Filing 58

ORDER signed by Magistrate Judge Craig M. Kellison on 5/10/2012 ORDERING that plaintiff's 55 motion for an extension of time; plaintiff's opposition to defendants' motion for summary judgment is due within 60 days; and plaintiff's 56 motion for disqualification of Magistrate Judge Craig M. Kellison is DENIED. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TIMOTHY WATTS,

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No. CIV S-09-1515-KJM-CMK-P

Plaintiff,

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vs.

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R. RAMOS, et al.,

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ORDER

Defendants.

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/

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant
to 42 U.S.C. § 1983.

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Pending before the court is plaintiff’s motion for an extension of time (Doc. 55) to

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file a response to defendants’ motion for summary judgment. Good cause appearing therefor, the

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request is granted. Plaintiff’s opposition shall be due within 60 days of the date of this order.

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Also before the court is plaintiff’s motion “requesting the removal of Magistrate

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Judge Kellison” (Doc. 56). Plaintiff’s motion is governed by 28 U.S.C. § 144, which provides as

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follows:

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Whenever a party to any proceeding in a district court makes and files a
timely and sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice either against him or in favor of
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any adverse party, such judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.

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Berger v. United States, 255 U.S. 22 (1922), is the seminal case interpreting § 144. See U.S. v.

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Azhocar, 581 F.2d 735, 738 (1976). As a preliminary matter, the Court in Berger held that the

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judge against whom a disqualification motion is brought may pass on its legal sufficiency. See

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Berger, 255 U.S. at 233. To be sufficient, the motion must state facts which, if true, fairly

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support the allegation of bias or prejudice which stems from an extrajudicial source and which

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may prevent a fair decision. See Azhocar, 581 F.2d at 740-41. Thus, the Supreme Court in

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Berger also held that adverse rulings alone cannot constitute the necessary showing of bias or

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prejudice. See Berger, 255 U.S. at 34.
In this case, plaintiff’s request for the removal of the undersigned is based solely

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on adverse rulings. Plaintiff does not present any facts showing a bias against plaintiff or for

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defendants which flows from an extrajudicial source.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s motion for an extension of time (Doc. 55) is granted;

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2.

Plaintiff’s opposition to defendants’ motion for summary judgment shall

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be due within 60 days of the date of this order; and
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Plaintiff’s motion for the disqualification of the undersigned is denied.

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DATED: May 10, 2012
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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