Ou-Young v. Roberts et al

Filing 38

ORDER DENYING PLAINTIFF'S SECOND MOTION TO VACATE JUDGMENT AND SECOND MOTION TO DISQUALIFY 34 35 (Illston, Susan) (Filed on 12/27/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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KUANG-BAO P. OU-YOUNG,

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No. CV 13-03676 SI

Plaintiff,

ORDER DENYING PLAINTIFF’S
SECOND MOTION TO VACATE
JUDGMENT AND SECOND MOTION TO
DISQUALIFY

v.
JOHN G. ROBERTS, JR., et al.,
Defendants.

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On November 8, 2013, the Court dismissed plaintiff’s complaint with prejudice as barred by the

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doctrine of absolute immunity and entered judgment in this action. Docket Nos. 26, 27. On November

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15, 2013, plaintiff filed a motion to vacate the judgment pursuant to Federal Rule of Civil Procedure

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60(b) and a motion to disqualify Judge Susan Illston as presiding judge over the present action. Docket

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Nos. 28-29. On November 15, 2013, the Court denied plaintiff’s motions. Docket No. 32.

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On December 12, 2013, plaintiff filed a second motion to vacate the judgment pursuant to

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Federal Rule of Civil Procedure 60(b) and a second motion to disqualify Judge Susan Illston as

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presiding judge over the present action. Docket Nos. 34-35. These motions are scheduled for a hearing

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on January 17, 2014. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is

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appropriate for resolution without oral argument and VACATES the hearing. For the reasons set forth

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below, the Court DENIES both motions.

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In the two motions, plaintiff largely makes the same arguments that this Court previously

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rejected when it denied plaintiff’s prior motion to vacate the judgment and motion to disqualify. In his

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Rule 60(b) motion, plaintiff attempts to relitigate the merits of his action. However, a Rule 60(b) motion

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may not be used to relitigate the merits of the case. See Casey v. Albertson’s Inc., 362 F.3d 1254, 1261

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(9th Cir. 2004); Maraziti v. Thorpe, 52 F.3d 252, 255 (9th Cir. 1995); see also Docket No. 32 at 2-3.

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Therefore, the Court denies plaintiff’s second Rule 60(b) motion. In addition, the undersigned judge

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does not need to recuse herself under 28 U.S.C. § 47 because section 47 does not apply to plaintiff’s

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motion to vacate the judgment. See Docket No. 32 at 1-2 (citing McCarthy v. Mayo, 827 F.2d 1310,

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1318 (9th Cir. 1987); Bankers Mortg. Co. v. United States, 423 F.2d 73, 78 (5th Cir. 1970)).
The only new argument raised in plaintiff’s renewed motions is that the undersigned judge

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should recuse herself under 28 U.S.C. § 455(a). Docket No. 35 at 2-5. 28 U.S.C. § 455(a) provides that

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United States District Court
For the Northern District of California

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a federal judge “shall disqualify himself in any proceeding in which his impartiality might reasonably

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be questioned.” “Section 455(a) requires recusal when a reasonable person with knowledge of all the

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facts would conclude that the judge’s impartiality might reasonably be questioned.” In re Marshall, 721

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F.3d 1032, 1041 (9th Cir. 2013). “§ 455(a) is limited by the ‘extrajudicial source’ factor which

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generally requires as the basis for recusal something other than rulings, opinions formed or statements

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made by the judge during the course of trial.” United States v. Holland, 519 F.3d 909, 913-14 (9th Cir.

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2008).

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Section 455(a) is self-enforcing on the part of the presiding judge. United States v. Sibla, 624

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F.2d 864, 867-68 (9th Cir. 1980). “[It] includes no provision for referral of the question of recusal to

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another judge; if the judge sitting on a case is aware of grounds for recusal under section 455, that judge

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has a duty to recuse himself or herself.” Id. at 868; see also In re Bernard, 31 F.3d 842, 843 (9th Cir.

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1994) (“Neither section 455, nor the Federal Rules of Appellate Procedure, nor our local rules contain

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a mechanism for referring disqualification motions to someone else.”).

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In his motion, plaintiff argues that the undersigned judge has shown bias against him by granting

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defendants’ motion to dismiss and denying plaintiff’s prior Rule 60(b) motion and motion to disqualify.

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Docket No. 25 at 2-5. However, “judicial rulings alone almost never constitute a valid basis for a bias

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or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). “[O]pinions formed by the

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judge on the basis of facts introduced or events occurring in the course of the current proceedings, or

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of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a
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deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks

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during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties,

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or their cases, ordinarily do not support a bias or partiality challenge.” Id.; see also Holland, 519 F.3d

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at 914 (“[T]he judge’s conduct during the proceedings should not, except in the ‘rarest of circumstances’

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form the sole basis for recusal under § 455(a).”). Because the only evidence of bias plaintiff presents

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in his motion is adverse judicial rulings, plaintiff has failed to provide an adequate basis for recusal.

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See Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 1999) (“Leslie’s allegations stem entirely from

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the district court judge’s adverse rulings. That is not an adequate basis for recusal.”). Accordingly, the

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Court denies plaintiff’s second motion to disqualify the undersigned judge.

United States District Court
For the Northern District of California

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CONCLUSION
For the foregoing reasons, the Court DENIES plaintiff’s second motion to disqualify and
DENIES plaintiff’s second motion to vacate the judgment. Docket Nos. 34, 35.

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IT IS SO ORDERED.

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Dated: December 27, 2013
SUSAN ILLSTON
United States District Judge

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