Davis v. Schroeder et al

Filing 20

ORDER signed by Magistrate Judge Carolyn K. Delaney on 5/22/12 DENYING 18 Motion for disqualification. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES L. DAVIS,
Plaintiff,

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vs.
SCHROEDER, et al.,
Defendants.

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ORDER
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No. CIV S-10-2972 MCE CKD P

On May 14, 2012 petitioner filed a motion for the disqualification of Magistrate
Judge Delaney. (Dkt. No. 18.)
Motions for disqualification are governed by 28 U.S.C. § 144 and 28 U.S.C. §

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455. See Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). Under 28 U.S.C. § 144, if a

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party demonstrates that “the judge before whom the matter is pending has a personal bias or

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prejudice either against him or in favor of any adverse party, such judge shall proceed no further

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therein, but another judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144.

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Similarly, 28 U.S.C. § 455 provides that a judge “shall disqualify himself in any proceeding in

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which his impartiality might reasonably be questioned” and in proceedings in which “he has a

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personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary

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facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1).
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The substantive standard under these statutes “is whether a reasonable person with

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

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questioned.” Pesnell, 543 F.3d at 1043. Generally, “a judge’s partiality must be shown to be

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based on information from extrajudicial sources, although sometimes, albeit rarely,

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predispositions developed during the course of a trial will suffice.” F.J. Hanshaw Enters., Inc. v.

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Emerald River Dev., Inc., 244 F.3d 1128, 1144–45 (9th Cir. 2001) (internal quotations and

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citations omitted); Pesnell, 543 F.3d at 1043. Thus, judicial rulings alone – apart from

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surrounding comments or accompanying opinions – almost never constitute valid grounds for

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disqualification. See Liteky v. United States, 510 U.S. 540, 556 (1994).
Here, plaintiff’s motion fails to meet the threshold for disqualification. Plaintiff

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makes conclusory statements that the undersigned is biased against him due to his race, ethnicity,

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and “disability as a HIV positive disabled person.” He asserts that the undersigned acquired this

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prejudice “from scan[n]ing the defendants filing in case[.]” (Dkt. No. 18 at 11.) However, no

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defendants have been served in this case, as plaintiff has yet to submit a complaint that complies

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with the pleading requirements of the Federal Rules of Civil Procedure. The only documents the

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court has reviewed in this action have been submitted by plaintiff himself, and the court has cited

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its legal grounds for dismissing the amended complaint and Second Amended Complaint with

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leave to amend. (Dkt. Nos. 13, 16.) Plaintiff’s unsubstantiated belief that the court is prejudiced

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against him is not a reasonable basis for questioning the impartiality of this court.
Accordingly, IT IS HEREBY ORDERED that petitioner’s April 5, 2012 motion

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for disqualification (Dkt. No. 18) is denied.

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Dated: May 22, 2012

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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davi2972.disqualify

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