Diaz v. Fox et al

Filing 36

ORDER signed by Magistrate Judge Carolyn K. Delaney on 3/14/2016 DENYING plaintiff's 35 motion for recusal.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MIGUEL DIAZ,

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No. 2:14-cv-2705 JAM CKD P
Plaintiff,

v.

ORDER

R. FOX, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights complaint filed under 42
U.S.C. § 1983. Plaintiff has filed a motion to recuse the undersigned. (ECF No. 35.)
The federal statute governing recusal provides:
Whenever a party to any proceeding in a district court makes and
files a timely and sufficient affidavit that the judge before whom the
matter is pending has a personal bias or prejudice either against him
or in favor of any adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such
proceeding.
The affidavit shall state the facts and the reasons for the belief that
bias or prejudice exists, and shall be filed not less than ten days
before the beginning of the term at which the proceeding is to be
heard, or good cause shall be shown for failure to file it within such
time. A party may file only one such affidavit in any case. It shall
be accompanied by a certificate of counsel of record stating that it
is made in good faith.
28 U.S.C. § 144; see also 28 U.S.C. § 455.
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The standard for recusal under 28 U.S.C. § 144 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.’” Mayes v. Leipziger, 729 F.2d 607, 607 (9th Cir. 1984) (quoting United States v.

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Nelson, 718 F.2d 315, 321 (9th Cir. 1983)). To provide adequate grounds for recusal, the

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prejudice must result from an extrajudicial source as a judge’s previous adverse ruling alone is

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not sufficient for recusal. See id.

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Section 144 expressly conditions relief upon the filing of a timely and legally sufficient

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affidavit. A judge who finds the affidavit legally sufficient must proceed no further under section

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144 and must assign a different judge to hear the matter. See 28 U.S.C. § 144. However, where

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the affidavit is not legally sufficient, the judge at whom the motion is directed can determine the

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matter. See United States v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (citing Toth v. Trans

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World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (holding that only after determining the

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legal sufficiency of a § 144 affidavit is a judge obligated to reassign decision on merits to another

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judge)). If the affidavit is legally insufficient, then recusal can be denied. See United States v.

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$292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995).

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Plaintiff’s motion for recusal is insufficient under section 144 because it fails to allege

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facts that would support the contention that the undersigned exhibits bias or prejudice directed

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towards him from an extrajudicial source. See U.S. v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980)

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(“An affidavit filed pursuant to [section 144] is not legally sufficient unless it specifically alleges

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facts that fairly support the contention that the judge exhibits bias or prejudice directed toward a

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party that stems from an extrajudicial source.”). Plaintiff’s motion for recusal alleges bias and

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prejudice arising out of judicial actions of the undersigned. These are not proper grounds to

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disqualify a judge for bias and prejudice. As the United States Supreme Court has noted,

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“judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.”

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Liteky v. United States, 510 U.S. 540, 555 (1994). Instead, the judicial rulings are a basis for

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appeal, not recusal. See id. (“In and of themselves ... [judicial rulings] cannot possibly show

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reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the

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degree of favoritism or antagonism required ... when no extrajudicial source is involved. Almost
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invariably, they are proper grounds for appeal, not for recusal.”); Leslie v. Grupo ICA, 198 F.3d

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1152, 1160 (9th Cir. 1999) (“Leslie’s allegations stem entirely from the district judge’s adverse

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rulings. That is not an adequate basis for recusal.”) (citations omitted).

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for recusal (ECF No. 35)

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is denied.

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Dated: March 14, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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