Gonzalez v. Department (Bureau) of Real Estate et al

Filing 87

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/3/2017 DENYING 83 Motion to Recuse. (Michel, G.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL GONZALEZ,

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No. 2:15-cv-2448 GEB GGH

Plaintiff,
v.

ORDER

DEPARTMENT (BUREAU) OF REAL
ESTATE, et al.,
Defendants.

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Plaintiff, appearing in pro se, has moved to disqualify the undersigned Magistrate Judge

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from further hearing this matter on the ground that he has shown bias and prejudice toward the

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plaintiff. ECF No. 83. He rests his motion on both 28 U.S.C. sections 144 and section 455.

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Under either section, the motion fails. However, it is first necessary to discuss a predicate issue

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to a motion for recusal under section 144.

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Section 144 (as opposed to section 455) does not permit the challenged judge to review

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the merits of recusal-- except where the litigant does not file a declaration/affidavit demonstrating

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the nature of the bias alleged, or the declaration is insufficient on its face. 28 U.S.C. section 144

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provides:

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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
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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.

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However, the court in Berger v. United States, 255 U.S. 22 (1922), held that the judge

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against whom a disqualification motion is brought may, indeed must, pass on the declaration’s

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legal sufficiency as opposed to the truth of the facts alleged. See Berger, 255 U.S. at 32. To be

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sufficient, the declaration must state facts which, if deemed to be true, fairly support the

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allegation of bias or prejudice which stems from an extrajudicial source and which may prevent a

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fair decision. U.S. v. Azhocar, 581 F.2d 735, 739-740 (9th Cir. 1976). See also United States v.

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Grinnel, 384 U.S. 563, 583 (1966) which states that [“t]he alleged bias and prejudice to be

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disqualifying must stem from an extrajudicial source and result in an opinion on the merits on

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some basis other than what the judge learned from participation in the case.”

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Pursuant to the foregoing authority the court has carefully examined the Memorandum

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and Declaration submitted by plaintiff and finds that he raises only issues of court rulings with

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which he disagrees. Principal among his criticisms is the failure of the court to address the

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absence of proof of service on a particular pleading that plaintiff stated he never received in “hard

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copy.” See inter alia ECF No. 4 at 7:5-8:20. In plaintiff’s view, the judge’s position on the issue

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creates an inference of preference for opposing counsel. This assumption is, in light of the

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foregoing, insufficient to show extrajudicial bias. Rather plaintiff is simply challenging the

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court’s judicial decision-making. These allegations do not rise to the level of those specified in

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28 U.S.C. section 144 pursuant to which it would be the duty of the court to refer the matter to an

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independent judicial officer to determine that extrajudicial bias is shown.

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Having determined that the undersigned may rule in this matter, the foregoing also

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disposes of plaintiff’s recusal arguments on the merits under both sections. 28 U.S.C. § 455

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provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in

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any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a).

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“Under both recusal statutes [section 144 and 455], 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. Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008).

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(internal quotations and citations omitted). Except in extraordinary situations where court rulings

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or statements on their face directly demonstrate an animosity or personal bias, impartiality or bias

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cannot reasonably be inferred from “poor” rulings or adverse rulings. That is “poor” or adverse

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rulings do not create the appearance of bias/impartiality except in the rarest situations. “Judicial

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rulings alone almost never constitute a valid basis for a bias or partiality motion.” Litkey v.

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United States, 510 U.S. 540, 555 (1994); In re Marshall, 721 F.3d 1032, 1041-42 (9th Cir. 2013).

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The fact that the undersigned did not accept plaintiff’s protestations about lack of service, after

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plaintiff certainly became aware of, and had access to, the allegedly non-served document does

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not demonstrate a personal bias.1

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Accordingly, under both 28 U.S.C. sections 144, and 455, plaintiff’s showing is
insufficient to merit recusal.

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In light of the foregoing, IT IS HEREBY ORDERED that: Plaintiff’s Motion to Recuse is
DENIED.

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IT IS SO ORDERED.
Dated: August 3, 2017
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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Even if rulings in this case could demonstrate bias, as a whole plaintiff has prevailed in as many
arguments as he has lost.
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