Benyamini v. Blackburn et al

Filing 85

ORDER signed by Magistrate Judge Allison Claire on 02/09/16 ordering that plaintiff's request to disqualify Magistrate Judge Kendall J. Newman as the settlement conference judge 84 is denied. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,

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Plaintiff,

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No. 2:13-cv-0205 MCE AC P

v.

ORDER

M. BLACKBURN, et al.,

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Defendants.

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Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to

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42 U.S.C. § 1983. On January 26, 2016, after defendants declined to waive disqualification of the

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undersigned as the settlement judge, this case was referred to Magistrate Judge Kendall J.

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Newman for settlement. ECF No. 83. Plaintiff has now filed objections to Magistrate Judge

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Newman acting as the settlement judge in this case (ECF No. 84), which the court construes as a

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request to disqualify Magistrate Judge Newman.
Because the undersigned is the magistrate judge assigned to this case, she cannot act as

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the settlement judge unless all parties consent. Although plaintiff consented to the undersigned

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acting as the settlement judge, defendants did not and the undersigned remains disqualified from

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acting as the settlement judge. The ability to decline to have a magistrate judge act as the

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settlement judge without showing cause applies only to the magistrate judge assigned to the case.

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When some or all of the parties choose not to waive any potential conflict in having the

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assigned magistrate judge act as the settlement judge, another magistrate judge is randomly

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selected to conduct the settlement conference. The parties do not have to consent to the randomly

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selected magistrate judge and they do not get to choose the magistrate judge assigned. In order to

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disqualify a magistrate judge who is not also assigned to the case from acting as the settlement

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judge, the party moving for disqualification must show cause.

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“Whenever a party to any proceeding in a district court makes and files a timely and

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sufficient affidavit 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.” 28 U.S.C. § 144. “Any justice, judge, or magistrate judge of the United States shall

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disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

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28 U.S.C. § 455(a). Under both recusal statutes, the substantive standard is “‘whether a

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reasonable person with knowledge of all the facts would conclude that the judge’s impartiality

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might reasonably be questioned.’” United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)

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(quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984)).

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Plaintiff argues that Magistrate Judge Newman is biased against him because he

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previously dismissed several of plaintiff’s cases and denied several motions. ECF No. 84. He

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alleges that the dismissals and denials were improper. Id. “[J]udicial rulings alone almost never

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constitute a valid basis for a bias or partiality motion,” Liteky v. United States, 510 U.S. 540, 555

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(1994), and plaintiff offers nothing more than his disagreement with Magistrate Judge Newman’s

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previous rulings as grounds for disqualification. Plaintiff has not established a reasonable

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question as to Magistrate Judge Newman’s impartiality or that a bias or prejudice exists. His

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request to disqualify Magistrate Judge Newman will therefore be denied.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request to disqualify Magistrate

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Judge Kendall J. Newman as the settlement conference judge (ECF No. 84) is denied.

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DATED: February 9, 2016

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