Farley v. Virga et al

Filing 75

ORDER signed by Magistrate Judge Kendall J. Newman on 9/15/14 ORDERING that plaintiffs motion to have this action assigned to a trial judge 73 construed as a motion for recusal, is denied.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM D. FARLEY,

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No. 2: 13-cv-1751 WBS KJN P

Plaintiff,

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v.

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T. VIRGA, et al.,

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ORDER

Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. On September 3, 2014, plaintiff filed a motion requesting that this action be

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assigned to a trial judge. (ECF No. 73.) The undersigned construes this motion as a request for

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recusal. For the reasons stated herein, this motion is denied.
Plaintiff requests that this action be assigned to a “trial or circuit judge” because he

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believes that the undersigned is working against plaintiff “in any way possible.”1 (Id. at 3.)

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Plaintiff alleges that the undersigned is working with or for the defendants because they are

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correctional officers. (Id.)
A judge is required to disqualify himself if his impartiality might reasonably be

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questioned, 28 U.S.C. § 455(a), or if he has a personal bias or prejudice against a party, 28 U.S.C.

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A district judge, the Honorable William B. Shubb, has been assigned to this action.
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§ 455(b)(1). Remarks made during the course of a judicial proceeding that are critical or hostile

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to a party or his case ordinarily will not support a bias or partiality claim unless they reveal an

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extrajudicial source for the opinion, or "such a high degree of favoritism or antagonism as to

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make fair judgment impossible." Liteky v. United States, 510 U.S. 540, 554 (1994.) The

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decision regarding disqualification is made by the judge whose impartiality is at issue. Bernard v.

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Coyne, 31 F.3d 842, 843 (9th Cir. 1994).

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Where the source of alleged bias or prejudice is a judicial proceeding, plaintiff must show

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a disposition on the part of the judge that "is so extreme as to display clear inability to render fair

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judgment." Liteky, 510 U.S. at 541. "Opinions formed by the judge on the basis of facts

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introduced or events occurring in the course of the current proceedings, or of prior proceedings,

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do not constitute a basis for a bias or partiality motion unless they display a deep-seated

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favoritism or antagonism that would make fair judgment impossible." Id. at 555. Bias is not

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found where the judge has expressed anger or dissatisfaction or annoyance that is within the

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bounds of reasonable behavior. Id.

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This undersigned’s actions in this case do not support disqualification. The actions taken

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were an appropriate response to filings. The undersigned’s rulings do not reflect an extreme

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disposition or deep-seated antagonism. They do not reflect animosity, partiality, or inability to

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render a fair judgment in the instant action. They do not indicate bias, personal or otherwise, or

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prejudice, personal or otherwise.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to have this action

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assigned to a trial judge (ECF No. 73), construed as a motion for recusal, is denied.

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Dated: September 15, 2014

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Far1751.rec

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