Jones v. Kuppinger et al

Filing 195

ORDER signed by Magistrate Judge Allison Claire on 11/13/2019 DENYING plaintiff's 194 motions to discharge his appointed counsel and to disqualify the magistrate judge from this action. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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HENRY A. JONES,

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No. 2:13-cv-0451 AC P

Plaintiff,
v.
ORDER
P. KUPPINGER, et al.,
Defendants.

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Plaintiff Henry Jones is a state prisoner proceeding with court-appointed counsel in this

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civil rights action. Trial is scheduled to begin on Monday, November 18, 2019. On November

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12, 2019, the court received and docketed plaintiff’s pro se motion to discharge his appointed

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counsel and to disqualify the undersigned judge from this action. ECF No. 194.

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Plaintiff’s motion to discharge his appointed counsel is denied. Last-minute motions

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seeking to discharge appointed counsel are strongly disfavored. See United States v. Garcia, 924

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F.2d 925, 926 (9th Cir. 1991) (“We have consistently held that a district court has broad

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discretion to deny a motion for substitution made on the eve of trial if the substitution would

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require a continuance.”).

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As plaintiff has been previously informed, this court may not consider a pro se filing from

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a party who is represented by counsel. See United States v. Mujahid, 799 F.3d 1228, 1236 (9th

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Cir. 2015) (district court acted within its discretion to deny request made by pro se litigant who
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was represented by counsel); McCullough v. Graber, 726 F.3d 1057, 1059 n.1 (9th Cir. 2013)

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(declining to consider pro se letters from habeas petitioner because he was represented by

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counsel); Rosenblum v. Campbell, 370 Fed. Appx. 782 (9th Cir. 2010) (“Because [petitioner] is

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represented by counsel, only counsel may submit filings.”). Accordingly, the undersigned will

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not consider the pro se motion to disqualify herself.1 Such a motion must be brought through

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counsel.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motions at ECF No. 194 are

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DENIED.

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DATED: November 13, 2019

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The Ninth Circuit has “held repeatedly that the challenged judge h[er]self should rule on the
legal sufficiency of a recusal motion in the first instance.” United States v. Studley, 783 F.2d
934, 940 (9th Cir. 1986) (citing United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978)
(collecting cases)). Plaintiff’s motion presents no facts that would cause a reasonable person to
question the magistrate judge’s impartiality. See Studley, 783 F.2d at 939. Adverse judicial
rulings do not provide grounds for recusal. Liteky v. United States, 510 U.S. 540, 555 (1994).
“The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge learned from [her]
participation in the case.” United States v. Grinnell Corp., 384 U.S. 563, 583 (1966) (citation
omitted); see also Liteky, 510 U.S. at 551 (“Also not subject to deprecatory characterization as
‘bias’ or ‘prejudice’ are opinions held by judges as a result of what they learned in earlier
proceedings. It has long been regarded as normal and proper for a judge to sit in the same case
upon its remand, and to sit in successive trials involving the same defendant.”)
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