Morris v. Green

Filing 6

ORDER signed by Magistrate Judge Carolyn K. Delaney on 4/10/2013 ORDERING that plaintiff's 4 motion for recusal is DENIED; and plaintiff's 5 motion to proceed IFP is DENIED for the reasons set forth in the 4/3/2013 court's order. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON E. MORRIS,

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Plaintiff,

No. 2:13-cv-0589 CKD P

vs.
C. M. GREEN,
Defendant.

ORDER
/

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On April 4, 2013, plaintiff filed a request to have the undersigned recuse herself

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from this action, asserting that she is biased or prejudiced against him. (Dkt. No. 4.) The court

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construes this as a motion for disqualification.

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Motions for disqualification are governed by 28 U.S.C. § 144 and 28 U.S.C. §

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455. See Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). Under 28 U.S.C. § 144, if a

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party demonstrates 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, but another judge shall be assigned to hear such proceeding.” 28 U.S.C. § 144.

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Similarly, 28 U.S.C. § 455 provides that a judge “shall disqualify himself in any proceeding in

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which his impartiality might reasonably be questioned” and in proceedings in which “he has a

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personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary

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facts concerning the proceeding.” 28 U.S.C. § 455(a), (b)(1).

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The substantive standard under these statutes “is whether a reasonable person with

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knowledge of all the facts would conclude that the judge’s impartiality might reasonably be

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questioned.” Pesnell, 543 F.3d at 1043. Generally, “a judge’s partiality must be shown to be

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based on information from extrajudicial sources, although sometimes, albeit rarely,

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predispositions developed during the course of a trial will suffice.” F.J. Hanshaw Enters., Inc. v.

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Emerald River Dev., Inc., 244 F.3d 1128, 1144–45 (9th Cir. 2001) (internal quotations and

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citations omitted); Pesnell, 543 F.3d at 1043. Thus, judicial rulings alone – apart from

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surrounding comments or accompanying opinions – almost never constitute valid grounds for

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disqualification. See Liteky v. United States, 510 U.S. 540, 556 (1994).

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Here, plaintiff’s claims fail to meet the threshold for disqualification. In an

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earlier-filed action, undersigned found plaintiff to be a “three strikes” litigant and subsequently

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recommended that the action be dismissed due to plaintiff’s failure to pay the filing fee. Morris

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v. Jennings, No. 2:12-cv-2240 GEB CKD P (E.D. Cal.), Dkt. No. 14. This recommendation was

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adopted by the district court. Id., Dkt. No. 16. After the action was closed, the undersigned

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refused to accept late-filed objections to the findings and recommendations, citing a lack of good

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cause. Id., Dkt. No. 18. Neither this nor any other judicial ruling in this or the earlier-filed

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action provides a reasonable basis for questioning the impartiality of this court.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for recusal (Dkt. No. 4) is denied; and

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2. Plaintiff’s motion to proceed in forma pauperis (Dkt. No. 5) is denied for the

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reasons set forth in the court’s April 3, 2013 order.
Dated: April 10, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2morr0589.disqual

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