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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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 JAMES L. DAVIS, Plaintiff, 11 12 13 14 vs. SCHROEDER, et al., Defendants. 17 18 ORDER / 15 16 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. § 19 455. See Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). Under 28 U.S.C. § 144, if a 20 party demonstrates that “the judge before whom the matter is pending has a personal bias or 21 prejudice either against him or in favor of any adverse party, such judge shall proceed no further 22 therein, but another judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144. 23 Similarly, 28 U.S.C. § 455 provides that a judge “shall disqualify himself in any proceeding in 24 which his impartiality might reasonably be questioned” and in proceedings in which “he has a 25 personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary 26 facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1). 1 1 The substantive standard under these statutes “is whether a reasonable person with 2 knowledge of all the facts would conclude that the judge’s impartiality might reasonably be 3 questioned.” Pesnell, 543 F.3d at 1043. Generally, “a judge’s partiality must be shown to be 4 based on information from extrajudicial sources, although sometimes, albeit rarely, 5 predispositions developed during the course of a trial will suffice.” F.J. Hanshaw Enters., Inc. v. 6 Emerald River Dev., Inc., 244 F.3d 1128, 1144–45 (9th Cir. 2001) (internal quotations and 7 citations omitted); Pesnell, 543 F.3d at 1043. Thus, judicial rulings alone – apart from 8 surrounding comments or accompanying opinions – almost never constitute valid grounds for 9 disqualification. See Liteky v. United States, 510 U.S. 540, 556 (1994). Here, plaintiff’s motion fails to meet the threshold for disqualification. Plaintiff 10 11 makes conclusory statements that the undersigned is biased against him due to his race, ethnicity, 12 and “disability as a HIV positive disabled person.” He asserts that the undersigned acquired this 13 prejudice “from scan[n]ing the defendants filing in case[.]” (Dkt. No. 18 at 11.) However, no 14 defendants have been served in this case, as plaintiff has yet to submit a complaint that complies 15 with the pleading requirements of the Federal Rules of Civil Procedure. The only documents the 16 court has reviewed in this action have been submitted by plaintiff himself, and the court has cited 17 its legal grounds for dismissing the amended complaint and Second Amended Complaint with 18 leave to amend. (Dkt. Nos. 13, 16.) Plaintiff’s unsubstantiated belief that the court is prejudiced 19 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 20 21 for disqualification (Dkt. No. 18) is denied. 22 Dated: May 22, 2012 23 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 24 25 2 26 davi2972.disqualify 2

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