Dev v. Donahoe

Filing 136

ORDER signed by Judge John A. Mendez on 11/6/13 DENYING 134 Motion for Reconsideration. (Manzer, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LAL DEV, 12 15 11-cv-2950 JAM-EFB-PS Plaintiff, 13 14 No. v. ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION PATRICK R. DONAHOE, POSTMASTER GENERAL OF THE UNITED STATES POSTAL SERVICE, 16 Defendant. 17 This matter is before the Court on Plaintiff Lal Dev’s 18 19 (“Plaintiff”) Motion for Reconsideration by the District Court of 20 the Magistrate Judge’s Ruling (Doc. #134). 1 21 file an opposition. 22 motion is DENIED. Defendant did not For the reasons set forth below, Plaintiff’s 23 I. 24 FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND Plaintiff filed this action on November 7, 2011, against 25 26 27 28 1 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 303(e). No hearing was scheduled. 1 1 Patrick R. Donahoe, Postmaster General of the United States 2 Postal Service (“Defendant”). 3 Magistrate Judge in this action and in Plaintiff’s related 4 action, Dev v. Donahoe, 2:12-cv-03026 JAM-EFB (Doc. #124). 5 Magistrate Judge denied Plaintiff’s motion (Doc. #130). Plaintiff moved to disqualify the The 6 7 II. OPINION 8 A. Legal Standard 9 The standard for a Motion for Reconsideration is governed by 10 28 U.S.C. § 636(b) and Local Rule 303. 11 reconsider any pretrial matter . . . where it has been shown that 12 the magistrate judge’s order is clearly erroneous or contrary to 13 law.” 14 standard of review under § 636(b)(1)(A) is highly deferential; 15 see United States v. Abonce-Barrera, 257 F.3d 959, 968-69 (9th 16 Cir. 2001), and does not permit the reviewing court to substitute 17 its own judgment for that of the magistrate judge’s. 18 City & County of San Francisco, 951 F.2d 236, 241 (9th Cir. 19 1991). The district court “may 28 U.S.C. § 363(b)(1)(A); E.D. Cal. L. R. 303(f). The Grimes v. 20 B. Discussion 21 Plaintiff seeks reconsideration of the Magistrate Judge’s 22 order denying Plaintiff’s motion to disqualify the Magistrate 23 Judge. 24 The applicable recusal statute, 28 U.S.C. § 455, provides 25 that “[a]ny justice, judge, or magistrate judge of the United 26 States shall disqualify himself in any proceeding in which his 27 impartiality might reasonably be questioned.” 28 455(a). 28 U.S.C. § He shall also disqualify himself when he has “a personal 2 1 bias or prejudice concerning a party...” or “[w]here he has 2 served in governmental employment and in such capacity 3 participated as counsel, adviser or material witness concerning 4 the proceeding or expressed an opinion concerning the merits of 5 the particular case in controversy.” 6 Furthermore, under § 455, the alleged bias must stem from an 7 “extrajudicial source.” 8 551 (1994). 9 facts introduced or events occurring in the course of the current Id. § 455(b)(1) and b(3). Liteky v. United States, 510 U.S. 540, “[O]pinions formed by the judge on the basis of 10 proceedings, or of prior proceedings, do not constitute a basis 11 for a bias or partiality motion unless they display a deep-seated 12 favoritism or antagonism that would make fair judgment 13 impossible.” 14 Id. at 555. Generally, Plaintiff contends that several of the Magistrate 15 Judge’s rulings in this case demonstrate a bias in favor of 16 Defendant because Defendant’s counsel is an Assistant U.S. 17 Attorney and the Magistrate Judge was formerly employed at the 18 U.S. Attorney’s Office and therefore, the Magistrate Judge should 19 have recused himself under § 455(a), § 455(b)(1), and § 20 455(b)(3). 21 allege that the Magistrate Judge had any actual participation in 22 this particular case while employed at the U.S. Attorney’s 23 Office. 24 v. Ruzzano, 247 F.3d 688, 695 (7th Cir. 2001) (“As applied to 25 judges who were former AUSAs, § 455(b)(3) requires some level of 26 actual participation in a case to trigger disqualification.”) 27 (citations omitted). 28 motion is based on his disagreement with various rulings made by See Mot. at 12-13. However, Plaintiff does not Therefore, recusal is not warranted. See United States In addition, to the extent Plaintiff’s 3 1 the Magistrate Judge, rulings in an action alone are insufficient 2 for recusal. 3 has not demonstrated that the Magistrate Judge’s ruling is 4 “clearly erroneous or contrary to law.” Liteky, 510 U.S. at 555. Accordingly, Plaintiff 5 6 7 III. ORDER For the reasons set forth above, the Court DENIES 8 Plaintiff’s Motion for Reconsideration of the Magistrate Judge’s 9 Ruling. 10 11 12 IT IS SO ORDERED. Dated: November 6, 2013 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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