Draper v. Rosairo et al

Filing 75

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/12/2012 DENYING 72 , 73 Motions for the disqualification of Magistrate Judge Brennan. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN CLINT DRAPER,
Plaintiff,

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No. 2:10-cv-0032 KJM EFB P

Defendant.

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ORDER

vs.
D. ROSARIO,

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Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action

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brought under 42 U.S.C. § 1983. Plaintiff moves to disqualify the undersigned from presiding

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over the instant action. Plaintiff’s motion is premised on his contention that the undersigned has

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issued unfair rulings, and because this case was reassigned to United States District Judge

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Kimberly J. Mueller. See Dckt. Nos. 72, 73.

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This action was initially assigned to the undersigned, a magistrate judge, and to Frank C.

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Damrell Jr., a district judge. By order filed November 21, 2011, the case was reassigned from

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Judge Damrell to District Judge Kimberly J. Mueller for all further proceedings. The November

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21, 2012 order did not affect the assignment of a magistrate judge to this action. The

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undersigned remains assigned to this action as the magistrate judge in accordance with Local

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Rule 302(b)(17).
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Motions to disqualify fall under two statutory provisions, 28 U.S.C. § 144 and 28 U.S.C.

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§ 455. 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 concerning a party, 28

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U.S.C. § 455(b)(1). Additionally, recusal is required under § 144 when a party “makes and files

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a timely and sufficient affidavit that the judge before whom the matter is pending has a personal

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bias or prejudice either against him or in favor of any adverse party . . . .”

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Here, plaintiff fails to establish any basis, under either § 144 or § 455, for a determination

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that the court’s impartiality might reasonably be questioned, and, consequently, are insufficient

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as a matter of law. See Liteky v. United States, 510 U.S. 540, 555 (1994) (judicial rulings alone

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almost never constitute a valid basis for a recusal motion based on bias or impartiality); United

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States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (same); see also United States v. Sibla,

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624 F.2d 864, 868 (9th Cir. 1980) (affidavit filed pursuant to § 144 is not legally sufficient where

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it contains only conclusions and is devoid of specific fact allegations tending to show personal

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bias stemming from an extrajudicial source). As plaintiff articulates no legitimate grounds for

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recusal, his motion must be denied.

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Accordingly, it HEREBY IS ORDERED that plaintiff’s motion for disqualification of the

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undersigned (Dckt. Nos. 72, 73) are denied.

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DATED: December 12, 2012.

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