Lewis v. Commissioner of Social Security

Filing 28

ORDER by Judge Kandis A. Westmore denying 27 Motion to Disqualify Judge (kawlc2, COURT STAFF) (Filed on 2/5/2013) (Additional attachment(s) added on 2/5/2013: # 1 Certificate/Proof of Service) (sisS, COURT STAFF).

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1 2 United States District Court 3 Northern District of California 4 5 6 GARY L. LEWIS, Plaintiff, 7 8 9 10 Case No.: C 4:12-4258 KAW ORDER DENYING PLAINTIFF'S SECOND MOTION FOR RECUSAL v. COMMISSIONER OF SOCIAL SECURITY, Defendant. Northern District of California United States District Court 11 12 13 14 Plaintiff is pro se and proceeds in forma pauperis in this case. The parties have consented to the jurisdiction of a magistrate judge. See 28 U.S.C. § 636(c). On January 31, 2013, Plaintiff filed a document titled "Plaintiff's affidavit demanding for 15 the disqualification of assigned judge." Dkt # 27. Plaintiff previously filed a similar motion, 16 which the Court denied. See Dkt # 14, 15. 17 Plaintiff's motion cites Civil Local Rule 3-15, Disqualification of Assigned Judge, which 18 states, "Whenever an affidavit of bias or prejudice directed at a Judge of this Court is filed 19 pursuant to 28 U.S.C. § 144, and the Judge has determined not to recuse him or herself and found 20 that the affidavit is neither legally insufficient nor interposed for delay, the Judge shall refer the 21 request for disqualification to the Clerk for random assignment to another Judge." 22 28 U.S.C. § 144 states: 23 Whenever a party . . . makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice 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. 24 25 26 27 28 The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists . . . The standard for recusal under 28 U.S.C. § 455 is “whether a reasonable person 1 2 with knowledge of all the facts would conclude that the judge's impartiality might 3 reasonably be questioned.” See United States v. Studley, 783 F.2d 934, 939 (9th Cir. 4 1986). 5 To be legally sufficient, an affidavit must state facts which, taken as true, fairly 6 support the moving party's allegation that bias or prejudice stemming from an extrajudicial 7 source may prevent a fair decision on the merits. See United States v. Azhocar, 581 F.2d 8 735, 739 (9th Cir. 1978). not an affidavit. See 66 Black's Law Dictionary (9th Ed. 2009) (affidavit defined as "A 11 Northern District of California Plaintiff's motion is legally insufficient. First, the document Plaintiff has filed is 10 United States District Court 9 voluntary declaration of facts written down and sworn to by the declarant before an officer 12 authorized to administer oaths"); see also 28 U.S.C. §1746 (allowing a declaration to be 13 used in the place of an affidavit by using the following language: “I declare . . . under 14 penalty of perjury that the foregoing is true and correct. Executed on (date). 15 (Signature)”.). Plaintiff has signed the document he filed, but has not declared under 16 penalty of perjury that the statements in the document are true and correct. For this reason 17 alone, Plaintiff's filing does not meet the requirements of Section 144. 18 Second, the filing does not state facts and reasons to support Plaintiff's allegation 19 that the Court is biased or prejudiced. Plaintiff writes that the Court knowingly and 20 willfully violated his equal protection rights. The Court cannot understand the rest of 21 Plaintiff's brief, which refers briefly to husband and wife testimony, motions to compel 22 and discovery sanctions, disbarment, "Sharon Ann Kidd," and the obstruction of justice 23 based on discrimination. None of these references provide any facts or reasons for Judge 24 Westmore to recuse herself. 25 Plaintiff writes that "now the court (KAW) is officially a defendant in this matter." 26 But Judge Westmore is not a defendant in this case. Plaintiff filed this case as a social 27 security case against the Commissioner of Social Security. 28 2 1 Because Plaintiff's motion is legally insufficient and there is no basis for recusal, 2 the Court will not refer the request for disqualification to the Clerk for random assignment 3 to another Judge. Plaintiff's motion for recusal is denied. 4 It is so ORDERED. 5 6 Dated: February 5, 2013 7 ___________________________ KANDIS A. WESTMORE United States Magistrate Judge 8 9 10 Northern District of California United States District Court 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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