Dunmore v. Dunmore

Filing 22

ORDER signed by Magistrate Judge Gregory G. Hollows on 2/6/12 DENYING 21 Motion to Recuse. (Meuleman, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVEN G. DUNMORE, et al.,

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Plaintiffs,

CIV. NO. S-11-2867 MCE GGH PS

vs.
JEREMY A. DUNMORE, et al.,
Defendants.

ORDER
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Plaintiff is proceeding in this action pro se. This proceeding was referred to this

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court by Local Rule 302(21), pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has filed a motion to

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recuse the undersigned from this case pursuant to 28 U.S.C. § 455.

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Although a judge is required to disqualify himself if his impartiality might

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reasonably be questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice against a

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party, 28 U.S.C. § 455(b)(1), the undersigned finds no reason to recuse himself here. Remarks

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made during the course of a judicial proceeding that are critical or hostile to a party or his case

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ordinarily will not support a bias or partiality claim unless they reveal an extrajudicial source for

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the opinion, or “such a high degree of favoritism or antagonism as to make fair judgment

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impossible.” Liteky v. United States, 510 U.S. 540, 554, 114 S.Ct. 1147, 1157, 127 L.Ed.2d 474,

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484 (1994.) The decision regarding disqualification is made by the judge whose impartiality is at
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issue. Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994).

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Where the source of alleged bias or prejudice is a judicial proceeding, plaintiff

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must show a disposition on the part of the judge that “is so extreme as to display clear inability to

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render fair judgment.” Liteky, 510 U.S. at 541, 114 S.Ct. at 1155. “Opinions formed by the

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judge on the basis of facts introduced or events occurring in the course of the current

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proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion

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unless they display a deep-seated favoritism or antagonism that would make fair judgment

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impossible.” Id. at 555, 114 S.Ct. at 1157. Bias is not found where the judge has expressed

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anger or dissatisfaction or annoyance that are within the bounds of reasonable behavior. Id.

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Plaintiff contends that the undersigned is biased against him because he is not

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represented by counsel, and that the undersigned violated 28 U.S.C. § 636(b)(1)(A) and/or

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(b)(1)(C) by dismissing his First Amended Complaint.

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Dismissal of a complaint by a magistrate judge does not violate section 636

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because it is not a dispositive ruling so long as plaintiff has the opportunity to amend his

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complaint. Since plaintiff has been given the opportunity to amend, this court’s previous order

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was not dispositive. The local rules provide that dispositive motions in pro se cases first be

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referred to the magistrate judge. E. D. Cal. L. R. 302(c)(21). Plaintiff will have a de novo

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review by the district judge if and when the undersigned issues findings and recommendations.

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28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b).

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This undersigned’s actions in this case do not support disqualification. The

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actions taken were an appropriate response to filings. The court’s rulings do not reflect an

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extreme disposition or deep-seated antagonism. They do not reflect animosity, partiality, or

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inability to render a fair judgment in the instant action. They do not indicate bias, personal or

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otherwise, or prejudice, personal or otherwise. Plaintiff’s request that the undersigned recuse

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himself is denied.

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Accordingly, IT IS ORDERED that: Plaintiff’s motion to recuse the undersigned,

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filed January 30, 2012, is denied.

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DATED: February 6, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH:076:Dunmore2867.rec.wpd

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