Tierney v. Torikawa et al

Filing 43

ORDER DENYING MOTION FOR MANDATORY DISQUALIFICATION OR RECUSAL OF UNITED STATES DISTRICT JUDGE re 41 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 8/2/12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Michael C. Tierney served by first class mail at the address of record on August 3, 2012.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MICHAEL C. TIERNEY,

)
)
Plaintiff,
)
)
vs.
)
)
LOIS TORIKAWA, SOCIAL WORKER; )
NURSE IRENE REVILLA, et al., )
)
Defendants.
)
_____________________________ )

CIVIL NO. 12-00056 LEK/RLP
ORDER DENYING MOTION FOR
MANDATORY DISQUALIFICATION OR
RECUSAL OF UNITED STATES
DISTRICT JUDGE

ORDER DENYING MOTION FOR MANDATORY DISQUALIFICATION
OR RECUSAL OF UNITED STATES DISTRICT JUDGE
Plaintiff Michael C. Tierney, proceeding pro se,

has

moved for "mandatory disqualification or recusal" of District
Judge Leslie E. Kobayashi.

His motion is denied.

It is not clear to the court whether Tierney is
bringing his motion under 29 U.S.C. § 455(a) or 28 U.S.C. § 144.
The court begins this order by analyzing the motion under
§ 455(a), but, given Tierney's attachment to his motion of a
declaration that he says is made "under penalty of perjury that
the foregoing is true and correct,” the court also, in an
abundance of caution, follows with an analysis under § 144.
Section 455(a) provides that any judge "shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned."

Section 455(a) does not require

that a disqualification motion be accompanied by an affidavit or
declaration.

Section 144 requires a sworn statement by the person
seeking disqualification.

The statute states:

Whenever a party to any proceeding in a
district court makes and files a timely and
sufficient affidavit that the judge before
whom the matter is pending has a personal
bias or prejudice either 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.
The affidavit shall state the facts and
the reasons for the belief that bias or
prejudice exists, and shall be filed not less
than ten days before the beginning of the
term at which the proceeding is to be heard,
or good cause shall be shown for the failure
to file it within such time. A party may
file only one such affidavit in any case. It
shall be accompanied by a certificate of
counsel of record stating that it is made in
good faith.
28 U.S.C. § 144.
Tierney's motion fails to provide grounds for Judge
Kobayashi's "mandatory disqualification" under either § 455(a) or
§ 144.

From what the court can tell from the record in this

case, Tierney is simply unhappy with Judge Kobayashi's ruling
denying his motion for a temporary restraining order.

The denial

noted that Tierney was seeking an order relating to his transfer
to a prison in Arizona along with Matt Pattioay, another inmate
that Tierney says harassed him.

Tierney appears to have been

requesting an order directed to Defendants in the case, who are
State of Hawaii officials employed at a Hawaii prison.

Judge

Kobayashi noted that, among other things, an order restraining
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Hawaii prison officials from doing anything would have no effect
on what might occur in Arizona.

Nothing in Judge Kobayashi’s

order suggests any reason that she should be disqualified.
I.

28 U.S.C. § 455(a)
In Liteky v. United States, 510 U.S. 540 (1994), the

Supreme Court, addressing § 455(a), said:
The fact that an opinion held by a judge
derives from a source outside judicial
proceedings is not a necessary condition for
"bias or prejudice" recusal, since
predispositions developed during the course
of a trial will sometimes (albeit rarely)
suffice. Nor is it a sufficient condition
for "bias or prejudice" recusal, since some
opinions acquired outside the context of
judicial proceedings (for example, the
judge's view of the law acquired in scholarly
reading) will not suffice. Since neither the
presence of an extrajudicial source
necessarily establishes bias, nor the absence
of an extrajudicial source necessarily
precludes bias, it would be better to speak
of the existence of a significant (and often
determinative) "extrajudicial source" factor,
than of an "extrajudicial source" doctrine,
in recusal jurisprudence.
Id. at 554-55.
The Supreme Court went on to explain what does and does
not warrant recusal under § 455(a):
First, judicial rulings alone almost never
constitute a valid basis for a bias or
partiality motion. . . . Almost invariably,
they are proper grounds for appeal, not for
recusal. Second, opinions formed by the
judge on the basis of facts introduced or
events occurring in the course of current
proceedings, or of prior proceedings, do not
constitute a basis for a bias or partiality
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motion unless they display a deep-seated
favoritism or antagonism that would make fair
judgment impossible. Thus, judicial remarks
during the course of a trial that are
critical or disapproving of, or even hostile
to, counsel, the parties, or their cases,
ordinarily do not support a bias or
partiality challenge. They may do so if they
reveal an opinion that derives from an
extrajudicial source; and they will do so if
they reveal such a high degree of favoritism
or antagonism as to make fair judgment
impossible. . . . Not establishing bias or
partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and
even anger, that are within the bounds of
what imperfect men and women, even after
having been confirmed as federal judges,
sometimes display. A judge’s ordinary
efforts at courtroom administration–even a
stern and short-tempered judge’s ordinary
efforts at courtroom administration–remain
immune.
Id. at 555-56.
Having examined each of the matters raised by Tierney's
motion, this court finds none that falls outside the very kind of
conduct that the Supreme Court has said does not support recusal.
Everything in Tierney's motion goes to his disagreement with
Judge Kobayashi's ruling(s).

Nothing in any of Judge Kobayashi’s

rulings in this case displays “a deep-seated favoritism or
antagonism that would make fair judgment impossible.”
555.

Id. at

Even assuming anything Judge Kobayashi said or wrote could

be considered critical of Tierney, the Supreme Court has made
clear that remarks “that are critical or disapproving of, or even
hostile to . . . the parties, or their cases, ordinarily do not

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support a bias or partiality charge.”

Liteky, 510 U.S. at 555.

As the Supreme Court said:
The judge who presides at a trial may,
upon completion of the evidence, be
exceedingly ill disposed towards the
defendant, who has been shown to be a
thoroughly reprehensible person. But the
judge is not thereby recusable for bias or
prejudice, since his knowledge and the
opinion it produced were properly and
necessarily acquired in the course of the
proceedings, and are indeed sometimes (as in
a bench trial) necessary to completion of the
judge's task.
Id. at 550-51.
II.

28 U.S.C. § 144
The court turns next to the question of whether Judge

Kobayashi’s disqualification is alternatively required under 28
U.S.C. § 144.

Section 144 requires a party seeking recusal to

submit a “timely and sufficient affidavit,” as well as a
certificate stating that the motion is made in good faith.
Tierney submits no good faith certificate, and his declaration is
not sufficient.
Tierney’s motion appears to be based entirely on
statements made by Judge Kobayashi in the course of making
rulings on motions.

In United States v. Scholl, 166 F.3d 964,

977 (9th Cir. 1999), the Ninth Circuit found insufficient an
affidavit relying on actions taken by the district judge during
proceedings, as such actions were “not a proper ground for
disqualification” under § 144.
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Having failed to meet the sufficiency requirement of
§ 144, Tierney is not entitled to Judge Kobayashi’s
disqualification under that statute.
III.

CONCLUSION
Tierney’s motion for Judge Kobayashi’s “mandatory

disqualification” is DENIED.
APPROVED AND SO ORDERED.
DATED: Honolulu, Hawaii, August 2, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Michael C. Tierney v. Lois Torikawa, et al.; CIVIL NO. 12-00056
LEK/RLP; ORDER DENYING MOTION FOR MANDATORY DISQUALIFICATION OR
RECUSAL OF UNITED STATES DISTRICT JUDGE
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