Hosea v. Wynne

Filing 65

ORDER denying 62 Motion for Recusal. Signed by Judge Edward J. Davila on 1/6/2012. (ejdlc1, COURT STAFF) (Filed on 1/6/2012) (Additional attachment(s) added on 1/6/2012: # 1 Certificate of Service) (ecg, COURT STAFF).

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN JOSE DIVISION CASE NO. 5:11-cv-02892 EJD NATHANIEL S. HOSEA, 11 ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL Plaintiff(s), For the Northern District of California United States District Court 10 12 13 v. MICHAEL B. DONLEY, Secretary of the United States Air Force, [Docket Item No. 62] 14 Defendant(s). 15 16 / Presently before the court is Plaintiff Nathaniel S. Hosea’s (“Plaintiff”) motion to recuse 17 Judge Edward J. Davila from presiding over this action. See Docket Item No. 62. For the reasons 18 stated below, the motion will be denied. 19 While Plaintiff did not state the legal authority upon which he makes this motion, the court 20 will examine his request under both 28 U.S.C. § 144 and 28 U.S.C. § 455.1 With these co-extensive 21 statutes, recusal is appropriate where “a reasonable person with knowledge of all the facts would 22 conclude that the judge’s impartiality might reasonable be questioned.” Yagman v. Republic Ins., 23 987 F.2d 622, 626 (9th Cir. 1993). Such recusal may rest on either “actual bias or the appearance of 24 bias.” Id. A district judge has a duty to disqualify himself “in any proceeding in which his 25 impartiality might reasonably be questioned” or where “he has a personal bias or prejudice 26 1 27 28 Assuming Plaintiff filed the instant motion pursuant to 28 U.S.C. § 144, this court must pass on the legal sufficiency of the affidavit in the first instance. See Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (“Only after the legal sufficiency of the affidavit is determined does it become the duty of the judge to ‘proceed no further’ in the case.”). 1 CASE NO. 5:11-cv-02892 EJD ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL 1 concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 2 28 U.S.C. § 455(a), (b)(1). However, “[f]ederal judges are obligated not to recuse themselves where 3 there is no reason to question their impartiality.” New York City Housing Develop. Corp. v. Hart 4 796 F.2d 976, 980 (7th Cir. 1986). 5 Here, Plaintiff’s conclusion of bias stems from this court’s prior rulings, with which he is 6 dissatisfied. The first denied without prejudice his request for appointment of counsel. See Docket 7 Item No. 27. The others were denials of Plaintiff’s requests to appear telephonically.2 Plaintiff has 8 appealed each of these orders. These allegations are not sufficient to demonstrate either actual bias 9 or an appearance of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (holding that judicial rulings alone are not a valid basis for a recusal motion as they do not establish reliance on an 11 For the Northern District of California United States District Court 10 extrajudicial source); see also Pesnell v. Arsenault, 543 F.3d 1038, 1044 (noting that a judge’s 12 efforts at courtroom administration do not amount to a demonstration of bias). 13 14 Accordingly, Plaintiff’s motion for recusal is DENIED. IT IS SO ORDERED. 15 16 Dated: January 6, 2012 EDWARD J. DAVILA United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 2 Notably, the order denying Plaintiff’s request to appear telephonically at a judiciallysupervised settlement conference was issued by the Magistrate Judge who held that conference. See Docket Item No. 42. 2 CASE NO. 5:11-cv-02892 EJD ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL

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