Hiramanek v. California Judicial Council et al

Filing 17

Order by Hon. Ronald M. Whyte denying 15 Request for Reassignment. rmwlc2, COURT STAFF) (Filed on 12/4/2015).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
Northern District of California

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ADIL HIRAMANEK,

Case No. 5:15-cv-04377-RMW

Plaintiff,
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v.

ORDER DENYING REQUEST FOR
REASSIGNMENT

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CALIFORNIA JUDICIAL COUNCIL, et al.,

Re: Dkt. No. 15

Defendants.
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Plaintiff Adil Hiramanek requests reassignment of his case to another district court judge.

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Dkt. No. 15. Plaintiff’s complaint generally asserts statutory and constitutional violations by court

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reporters and California state court officials (including a challenge to the state statute under which

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plaintiff was declared a vexatious litigant) and challenges to federal court procedures that,

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according to plaintiff, unconstitutionally interfere with his right to appellate review. See Dkt. No.

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1, 1-1. Plaintiff’s purported bases for recusal can be grouped into three categories: (1) the

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undersigned’s prior employment as a state court judge; (2) a purported financial interest in the

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case; and (3) the undersigned’s rulings in another pending case filed by plaintiff, No.

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5:13-cv-00228, which plaintiff characterizes as biased, based on ex parte communications with

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defendants, or potentially affected by his current complaint. Plaintiff presents no sufficient basis

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for recusal.
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5:15-cv-04377-RMW
ORDER DENYING REQUEST FOR REASSIGNMENT
RS

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I.

LEGAL STANDARD
Plaintiff moves for recusal under 28 U.S.C. §§ 455 and 144.1 Section 455 provides that a

judge “shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” Section 144 provides for reassignment where a party files a “timely and sufficient
affidavit” averring that the judge before whom the case is pending “has a personal bias or
prejudice” either against the party or in favor of any adverse party. If a judge finds a § 144 motion

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timely and the affidavit legally sufficient, the judge must proceed no further and another judge
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must be assigned to hear the matter. 28 U.S.C. § 144; United States v. Sibla, 624 F.2d 864, 867
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(9th Cir. 1980).
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“Since a federal judge is presumed to be impartial, the party seeking disqualification bears
a substantial burden to show that the judge is biased.” Torres v. Chrysler Fin. Co., No.

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United States District Court
Northern District of California

C 07-00915 JW, 2007 WL 3165665, at *1 (N.D. Cal. Oct. 25, 2007) (citing Reiffin v. Microsoft
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Corp., 158 F. Supp. 2d 1016, 1021–22 (N.D. Cal. 2001)). “The test for creation of apparent bias
sufficient to require dismissal under [Section 455] is an objective one: ‘whether a reasonable
person with knowledge of all the facts would conclude that the judge’s impartiality might
reasonably be questioned.’” Herrington v. Sonoma Cnty., 834 F.2d 1488, 1502 (9th Cir. 1987)

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(quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983)). In this context, the
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“reasonable person” is not someone who is “hypersensitive or unduly suspicious,” but rather a
“well-informed, thoughtful observer” who “understand[s] all the relevant facts” and “has
examined the record and law.” United States v. Holland, 519 F.3d 909, 913–14 (9th Cir. 2008)
(citations omitted). This standard does not mandate recusal upon the mere “unsubstantiated
suspicion of personal bias or prejudice.” Id. at 913 (citation omitted). In addition, Section 455(a)
is “limited by the ‘extrajudicial source’ factor which generally requires as the basis for recusal

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something other than rulings, opinions formed or statements made by the judge during the course
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To the extent that plaintiff also seeks disqualification under 28 U.S.C. § 351, plaintiff has not
complied with the procedural requirement of “fil[ing] with the clerk of the court of appeals for the
circuit a written complaint containing a brief statement of the facts constituting” alleged improper
conduct. 28 U.S.C. § 351(a).
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5:15-cv-04377-RMW
ORDER DENYING REQUEST FOR REASSIGNMENT
RS

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of [proceedings].” Id. at 913–14.
Plaintiff’s motion here does not provide a legally sufficient basis for recusal. Accordingly,

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the court did not ask that the matter be reassigned.

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II.

ANALYSIS

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A.

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Plaintiff asserts that his case must be reassigned because the undersigned was previously a

Prior Service as a State Court Judge

state court judge in Santa Clara County.2 However, plaintiff has not shown that the undersigned

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was involved in any of plaintiff’s litigation before the Santa Clara County Superior Court. See,

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e.g., Amaya v. Home Ice, Fuel & Supply Co., 59 Cal. 2d 295 (1963) (California Supreme Court

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Justice recused from hearing case he previously heard while sitting as a judge on a lower court).

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United States District Court
Northern District of California

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There is no general requirement for “federal judges to recuse themselves from cases heard by

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other judges on the state courts where they sat previously.” Wells Fargo Bank, N.A. v. Vann, No.

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C 13-1148 YGR, 2013 WL 1409880, at *1 (N.D. Cal. Apr. 8, 2013). Thus, the undersigned’s

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prior judicial service on the Santa Clara County Superior Court does not provide a basis for

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recusal here.

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B.

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Plaintiff asserts that the undersigned and the undersigned’s spouse “derives

Financial Interest in the Litigation

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financial/retirement benefits from his ex-employer/state defendant, and is substantially interested

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in/affected by the outcome, on Plaintiff’s billion dollar damage claim.” Dkt. No. 15 at 11. Even

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accepting this allegation as true, which it is not, the receipt of unspecified “financial/retirement

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benefits” is wholly separate from the issues in this case. The case has nothing to do with financial

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payments, or eligibility thereto, from the state or county. Any judgment reached in this case will

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have no plausible effect on either the undersigned or the undersigned’s spouse’s receipt of

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financial benefits from the state or county. Accordingly, the (nonexistent) “financial/retirement

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benefits” do not provide a basis for recusal.

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The undersigned served on the Santa Clara County Superior Court from 1989 to 1992.
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5:15-cv-04377-RMW
ORDER DENYING REQUEST FOR REASSIGNMENT
RS

C.

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Bias and Ex Parte Communications

The remainder of plaintiff’s assertions can be characterized as complaints with the

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substance of the rulings made in another pending case, No. 5:13-cv-00228. Specifically, plaintiff
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suggests that the undersigned has relied on ex parte communications to rule on matters and that
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the rulings evidence a “lack of impartiality,” “ongoing advocacy for state defendant,” and engage
in “bizarre reasoning, devoid of facts, law or merits.” Dkt. No. 15 at 21.

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Plaintiff’s declaration contains no legally sufficient allegations of any ex parte

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communications. The allegations are entirely conclusory and not supported by facts relevant to
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United States District Court
Northern District of California

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the conclusion plaintiff seeks to draw. For example, plaintiff states that “CASAs [Court
Appointed Special Advocate, a.k.a. Child Advocate, including [the undersigned’s spouse]
participated in 57% of [juvenile dependency cases].” Dkt. No. 15-1 ¶ 15.3 That may be true.
Plaintiff then concludes that “Some of extra judicial knowledge procured by [the undersigned], as

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expressed in his written orders in this litigation, comes from sources outside the litigation,
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including apparently [the] spouse.” Id. The fact that unspecified CASAs participate in juvenile
dependency cases suggests absolutely nothing about ex parte communications regarding plaintiff’s

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case.
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Plaintiff also argues that recusal is warranted because Claim 3 of his complaint relates to a
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ruling the undersigned made in the co-pending case, No. 5:13-cv-00228, revoking plaintiff’s in

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forma pauperis status for an appeal. See Dkt. No. 15 at 13; Dkt. No. 1 ¶¶ 102-06. Claim 3 of
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plaintiff’s complaint asserts that the Ninth Circuit Court of Appeals practice of referring to a

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district court the question of whether a party should be able to maintain in forma pauperis status
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on appeal violates the U.S. Constitution and 28 U.S.C. § 47. See generally Dkt. No. 1 ¶¶ 91-115.
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Plaintiff asserts that the undersigned “will be a potential witness on that claim#3,” and thus recusal
is required. Dkt. No. 15 at 13. Plaintiff’s argument is legally insufficient. A sitting judge “may

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The court notes that plaintiff’s declaration does not comply with Civil Local Rule 7-5(b), which
requires that “[a]n affidavit or declarations may contain only facts, must conform as much as
possible to the requirements of Fed. R. Civ. P. 56(e), and must avoid conclusions and argument.”
(emphasis added). The declaration is largely additional conclusions and argument, in excess of the
25 page limit on motions. Civ. L.R. 7-2(b).
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5:15-cv-04377-RMW
ORDER DENYING REQUEST FOR REASSIGNMENT
RS

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not be compelled to testify concerning the mental processes used in formulating official judgments

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or the reasons that motivated him in the performance of his official duties.” United States v. Roth,

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332 F. Supp. 2d 565, 567 (S.D.N.Y. 2004); see United States v. Morgan, 313 U.S. 409, 422

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(1941). Nor may a judge be compelled to testify regarding official matters unless “there exists a

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sufficient basis to conclude that the judge ‘possess[es] factual knowledge . . . and [is] the only

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possible source of testimony on that knowledge.’” Bliss v. Fisher, 714 F. Supp. 2d 223, 223-24

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(D. Mass. 2010) (quoting United States v. Frankenthal, 582 F.2d 1102, 1108 (7th Cir. 1978)).

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Plaintiff has provided no reason why the undersigned could be a witness in this action.
None of plaintiff’s remaining allegations, even if taken as true, constitute grounds for

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recusal, insofar as they are all covered by the “extrajudicial source” doctrine, which requires “as

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United States District Court
Northern District of California

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the basis for recusal something other than rulings, opinions formed or statements made by the

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judge during the course of [proceedings].” Holland, 519 F.3d at 914. “[J]udicial rulings alone

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almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510

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U.S. 540, 554 (1994).

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III.

ORDER

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For the reasons explained above, plaintiff’s request that the undersigned be recused from

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acting on this case is DENIED. Plaintiff’s request for a hearing is DENIED. Plaintiff’s request

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for the undersigned to produce his Senate confirmation record is DENIED.

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IT IS SO ORDERED.
Dated: December 4, 2015
______________________________________
Ronald M. Whyte
United States District Judge

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5:15-cv-04377-RMW
ORDER DENYING REQUEST FOR REASSIGNMENT
RS