Marty v. Green et al

Filing 58

ORDER signed by Magistrate Judge Kendall J. Newman on 7/5/2011 ORDERING Plaintiff's Order to Show Just Cause and Order for Discovery are summarily DISREGARDED; pltf's motion to move El Dorado County Superior Court case #PDP09-0047 to this c ourt is DENIED; Pltf's motion to remove the undersigned from this case is DENIED; as a result of the denial of all relief sought by pltf's Motion to Move Juvenile Case to Federal Court: Motion to Replace [Judge] Newman: Order to Show Just Cause: Order for Discovery 51 , the hearing date on that motion, set for 7/28/2011, is VACATED. (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOSEPH EDWARD MARTY,

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Plaintiff,

No. 2:10-cv-01823 KJM KJN PS

v.
LOUIS B. GREEN, et al.,
Defendants.

ORDER
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On May 17, 2011, plaintiff filed a motion entitled “Motion to Move Juvenile Case

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to Federal Court: Motion to Replace [Judge] Newman: Order to Show Just Cause: Order for

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Discovery.” (Dkt. No. 51.) Because plaintiff failed to properly notice that motion, the court

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vacated the hearing date noticed by plaintiff and ordered plaintiff to re-notice the motion.

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(Minute Order, May 20, 2011, Dkt. No. 52.) On June 1, 2011, plaintiff filed an amended notice

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of motion, and noticed his previously filed motion for a hearing date of July 28, 2011. (Notice of

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New Hearing Date, Dkt. No. 53.) Despite a previous warning that any document through which

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plaintiff purports to act as a “Judge” would be summarily disregarded (Order, Apr. 7, 2011, Dkt.

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No. 44), plaintiff continues to sign many of his filings as follows: “Joseph-Edward:Marty,

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Postmaster, Bank, Banker, Judge, Libellant, R.R.~537~222~786~U.S.” For the reasons stated

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below, the undersigned: (1) summarily disregards plaintiff’s “Order to Show Just Cause” and
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“Order for Discovery”; (2) denies plaintiff’s motion to move the juvenile case to federal court;

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and (3) denies plaintiff’s motion to remove the undersigned.

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I.

Plaintiff’s “Order to Show Just Cause” and “Order for Discovery”

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Plaintiff has a history of filing documents that are styled as orders of this court,

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and through which plaintiff purports to act as a judge. Given the highly inappropriate and

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fraudulent nature of these filings, the undesigned entered an order that disregarded such filings

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and further provided: “Plaintiff shall not file any additional documents through which he purports

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to enter a writ or order on his own authority. Any such filings by plaintiff in the future will be

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summarily disregarded by the court, and will further result in a recommendation that plaintiff’s

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case be dismissed with prejudice . . . .” (Order, Apr. 7, 2011, at 1.) Plaintiff’s pending motion

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includes an “Order to Show Just Cause” and “Order for Discovery,” which again reflect

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plaintiff’s attempts to act as a judge in this case. Because plaintiff’s “Order to Show Just Cause”

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and “Order for Discovery” violate the court’s April 7, 2011 order, they are summarily

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disregarded.

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II.

Plaintiff’s Motion to Move the Juvenile Case to Federal Court

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Plaintiff’s motion also “demands” that this court “move” a juvenile case

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proceeding in the El Dorado Superior Court as “case #PDP09-0047” to this court. The

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undersigned denies plaintiff’s request because two sets of proposed findings and

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recommendations are pending before the district judge assigned to this case. (Dkt. Nos. 43, 50.)

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If those proposed findings and recommendations are adopted, all of plaintiff’s claims in this

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action will be dismissed with prejudice, and this case will be closed. Accordingly, the

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undersigned denies plaintiff’s motion to move the state juvenile proceeding to this court. If the

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district judge assigned to this case does not adopt the pending findings and recommendations,

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plaintiff may re-file his motion.

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III.

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Plaintiff’s Motion to Remove The Undersigned
Finally, plaintiff’s motion includes a request that the undersigned be disqualified
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from this case because the undersigned has issued orders that: (1) do not contain “court stamps

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signed by the court clerk”; and (2) interfere with plaintiff’s claims. He also tersely alleges that

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the undersigned is “no longer fair and impartial.” The bases for plaintiff’s motion to disqualify

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the undersigned solely relate to orders issued by the undersigned in this case.

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Pursuant to 28 U.S.C. § 144, a party may file a “timely and sufficient affidavit”

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seeking to preclude the assigned judge from presiding over the matter any further as a result of “a

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personal bias or prejudice” as to a party in the action. Section 144 provides, in its entirety:

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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
any adverse party, such judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists, and shall be filed not less than ten days before the
beginning of the term at which the proceeding is to be heard, or good
cause shall be shown for failure to file it within such time. A party may
file only one such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good faith.

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28 U.S.C. § 144.
Additionally, a United States magistrate judge may disqualify himself or herself

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for several reasons presented in 28 U.S.C. § 455. For example, “[a]ny . . . magistrate judge of the

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United States shall disqualify himself in any proceeding in which his impartiality might

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reasonably be questioned.” 28 U.S.C. § 455(a). Moreover, a magistrate judge “shall also

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disqualify himself [or herself] . . . [w]here he has a personal bias or prejudice concerning a party,

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or personal knowledge of disputed evidentiary facts concerning the proceeding.” Id. § 455(b)(1).

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The Ninth Circuit Court of Appeals has held that “[t]he substantive standard for

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recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: ‘[W]hether a reasonable person

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with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be

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questioned.’” United States v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir. 1997) (per curiam)

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(quoting United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)); accord Pesnell v.
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Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008).
In United States v. Grinnell Corp., 384 U.S. 563 (1966), the United States

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Supreme Court stated that in order for the “alleged bias and prejudice to be disqualifying” in the

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context of a Section 144 affidavit, it must stem from an “extrajudicial source.” Id. at 583. In

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Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court extended the so-called

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“extrajudicial source doctrine” to disqualifications pursuant to 28 U.S.C. § 455, but clarified that

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the alleged bias must usually arise from an extrajudicial source. See id. at 554-55 (stating that “it

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would be better to speak of the existence of a significant (and often determinative) ‘extrajudicial

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source’ factor, than of an ‘extrajudicial source’ doctrine, in recusal jurisprudence). In so holding,

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the Court explained:
First, judicial rulings alone almost never constitute a valid basis for a bias
or partiality motion. In and of themselves (i.e., apart from surrounding
comments or accompanying opinion), they cannot possibly show reliance
upon an extrajudicial source; and can only in the rarest circumstances
evidence the degree of favoritism or antagonism required (as discussed
below) when no extrajudicial source is involved. Almost invariably, they
are proper grounds for appeal, not for recusal. Second, opinions formed
by the judge on the basis of facts introduced or events occurring in the
course of the current proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a trial that are
critical or disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge. They may do
so if they reveal an opinion that derives from an extrajudicial source; and
they will do so if they reveal such a high degree of favoritism or
antagonism as to make fair judgment impossible.

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Id. at 555 (citation omitted); see also United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir.

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2010) (“We have described the extrajudicial source factor as involving ‘something other than

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rulings, opinions formed or statements made by the judge during the course of trial.’”) (quoting

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United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008)). “‘[E]xpressions of impatience,

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dissatisfaction, annoyance, and even anger’ are not grounds for establishing bias or impartiality,

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nor are a judge’s efforts at courtroom administration.” Pesnell, 543 F.3d at 1044 (citing Liteky,

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510 U.S. at 555-56).
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Here, the extrajudicial source factor applies to plaintiff’s motion to remove the

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undersigned and forecloses plaintiff’s request for disqualification. Plaintiff has simply failed to

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identify any extrajudicial source that gives rise to his request for disqualification. Instead,

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plaintiff’s complaints stem entirely from the undersigned’s judicial rulings in plaintiff’s case.

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Thus, plaintiff’s request for disqualification is squarely foreclosed by the Supreme Court’s

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decision in Liteky and the Ninth Circuit Court of Appeals’s subsequent decisions that are in

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accord with Liteky. Accordingly, plaintiff’s request to remove the undersigned is denied.

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IV.

CONCLUSION

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For the foregoing reasons, IT IS HEREBY ORDERED that:

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summarily disregarded.

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Plaintiff’s “Order to Show Just Cause” and “Order for Discovery” are

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Plaintiff’s motion to move El Dorado County Superior Court case

#PDP09-0047 to this court is denied.

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3.

Plaintiff’s motion to remove the undersigned from this case is denied.

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4.

As a result of the denial of all relief sought by plaintiff’s “Motion to Move

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Juvenile Case to Federal Court: Motion to Replace [Judge] Newman: Order to Show Just Cause:

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Order for Discovery” (Dkt. No. 51), the hearing date on that motion, set for July 28, 2011, is

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vacated.

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IT IS SO ORDERED.
DATED: July 5, 2011

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_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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