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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United States District Court
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Northern District of California

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GARY L. LEWIS,
Plaintiff,

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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

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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

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the disqualification of assigned judge." Dkt # 27. Plaintiff previously filed a similar motion,

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which the Court denied. See Dkt # 14, 15.

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Plaintiff's motion cites Civil Local Rule 3-15, Disqualification of Assigned Judge, which

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states, "Whenever an affidavit of bias or prejudice directed at a Judge of this Court is filed

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pursuant to 28 U.S.C. § 144, and the Judge has determined not to recuse him or herself and found

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that the affidavit is neither legally insufficient nor interposed for delay, the Judge shall refer the

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request for disqualification to the Clerk for random assignment to another Judge."

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28 U.S.C. § 144 states:

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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.

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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

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with knowledge of all the facts would conclude that the judge's impartiality might

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reasonably be questioned.” See United States v. Studley, 783 F.2d 934, 939 (9th Cir.

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1986).

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To be legally sufficient, an affidavit must state facts which, taken as true, fairly

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support the moving party's allegation that bias or prejudice stemming from an extrajudicial

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source may prevent a fair decision on the merits. See United States v. Azhocar, 581 F.2d

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735, 739 (9th Cir. 1978).

not an affidavit. See 66 Black's Law Dictionary (9th Ed. 2009) (affidavit defined as "A

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Northern District of California

Plaintiff's motion is legally insufficient. First, the document Plaintiff has filed is

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United States District Court

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voluntary declaration of facts written down and sworn to by the declarant before an officer

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authorized to administer oaths"); see also 28 U.S.C. §1746 (allowing a declaration to be

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used in the place of an affidavit by using the following language: “I declare . . . under

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penalty of perjury that the foregoing is true and correct. Executed on (date).

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(Signature)”.). Plaintiff has signed the document he filed, but has not declared under

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penalty of perjury that the statements in the document are true and correct. For this reason

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alone, Plaintiff's filing does not meet the requirements of Section 144.

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Second, the filing does not state facts and reasons to support Plaintiff's allegation

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that the Court is biased or prejudiced. Plaintiff writes that the Court knowingly and

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willfully violated his equal protection rights. The Court cannot understand the rest of

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Plaintiff's brief, which refers briefly to husband and wife testimony, motions to compel

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and discovery sanctions, disbarment, "Sharon Ann Kidd," and the obstruction of justice

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based on discrimination. None of these references provide any facts or reasons for Judge

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Westmore to recuse herself.

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Plaintiff writes that "now the court (KAW) is officially a defendant in this matter."

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But Judge Westmore is not a defendant in this case. Plaintiff filed this case as a social

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security case against the Commissioner of Social Security.

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Because Plaintiff's motion is legally insufficient and there is no basis for recusal,

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the Court will not refer the request for disqualification to the Clerk for random assignment

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to another Judge. Plaintiff's motion for recusal is denied.

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It is so ORDERED.

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Dated: February 5, 2013

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___________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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Northern District of California

United States District Court

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