White v. Smyers et al

Filing 43

ORDER signed by Magistrate Judge Allison Claire on 06/12/14 denying 42 Motion to temporarily unassign the undersigned from this action. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WALTER HOWARD WHITE,

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Plaintiff,

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No. 2:12-cv-02868 MCE AC P

v.

ORDER

D. SMYERS, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis with this civil rights

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action filed pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local

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Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Currently pending before the court is plaintiff’s

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motion for a temporary restraining order filed on June 2, 2014 and plaintiff’s motion to

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temporarily remove the undersigned magistrate judge pending adjudication of the motion for a

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restraining order. See ECF Nos. 39, 42. The court will address plaintiff’s motion to recuse the

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undersigned in this order.

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I.

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Motion for Recusal
In his motion, plaintiff contends that the prior ruling on plaintiff’s 2012 motion for a

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temporary restraining order issued by the undersigned demonstrates that she is prejudiced against

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plaintiff and cannot therefore impartially rule on the pending motion for a temporary restraining

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order. ECF No. 42 at 5-6. Specifically, plaintiff indicates that the undersigned initially ordered
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the defendants to respond to the 2012 motion for a restraining order even though they had not yet

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filed an appearance in the case, but then denied the motion as moot since plaintiff had been

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transferred out of High Desert State Prison, without requiring any response from defendants. Id.

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at 4-6. Plaintiff argues that the evidence he tendered with the first motion for a restraining order

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met the legal standard for relief and that it should have been granted. Id. at 6-9.

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II.

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Governing Legal Standard
Under 28 U.S.C. § 144, if “the judge before whom the matter is pending has a personal

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bias or prejudice either against him or in favor of any adverse party, ... [he] shall proceed no

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

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“[a]ny ... judge ... shall disqualify himself in any proceeding in which his impartiality might

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reasonably be questioned.” Id. Under both recusal statutes, the substantive standard is

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“‘[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's

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impartiality might reasonably be questioned.’” Id. (quoting United States v. Hernandez, 109 F.3d

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1450, 1453 (9th Cir. 1997)). Under 28 U.S.C. § 144, “whenever a party to any proceeding in a

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district court makes and files a timely and sufficient affidavit that the judge before whom the

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matter is pending has a personal bias or prejudice either against him or in favor of any adverse

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party, such judge shall proceed no further therein, but another judge shall be assigned to hear such

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proceeding.” 28 U.S.C. § 144.

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III.

Analysis

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Plaintiff's motion for recusal must be denied because a judge's rulings while presiding

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over a case do not constitute extra-judicial conduct. See Nilsson, Robbins, Dalgarn, Berliner,

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Carson & Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1548 (9th Cir. 1988). All of plaintiff's

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allegations stem from the prior rulings made by Magistrate Judge Allison Claire while presiding

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over the present case. Plaintiff's disagreement with the court's ruling on his prior motion for a

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temporary restraining order is not a legitimate ground for seeking recusal, and plaintiff's motion

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shall be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to temporarily unassign

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the undersigned from this action (ECF No. 42) is denied.

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DATED: June 12, 2014

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