Cohn v. State of Hawaii, Department of Education

Filing 24

ORDER Denying Plaintiff's Motion For Recusal re 18 . Signed by Judge BARRY M. KURREN on 12/12/12. (gls, )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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GEORGE R. COHN,

) CV. NO. 12-00502 JMS-BMK
)
Plaintiff,
) ORDER DENYING PLAINTIFF’S
) MOTION FOR RECUSAL
vs.
)
)
STATE OF HAWAII,
)
DEPARTMENT OF EDUCATION, )
)
Defendant.
)
_____________________________ )
ORDER DENYING PLAINTIFF'S MOTION FOR RECUSAL
Before the Court is Plaintiff George Cohn’s Motion for Recusal
(Doc. 18.), which was referred to this Court in the Order Referring Plaintiff’s
Motion for Recusal of Judge Barry M. Kurren. (Doc. 20.) After careful
consideration of the Motion, Plaintiff’s Motion is DENIED.
On November 16, 2012, Plaintiff a document entitled, “Pleading #3
Accommodation, and Recusal Request.” (Doc. 18.) In that Document, Plaintiff
requested that the Court (1) appoint counsel and (2) recuse Judge Barry M. Kurren
from this case. On November 21, 2012, District Judge J. Michael Seabright denied
the request for counsel and referred the Motion for Recusal to this Court.
Section (a) of 28 U.S.C. § 455 provides that “[a]ny justice, judge, or
magistrate of the United States shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.” See also 28 U.S.C. § 144
(providing that if “the judge before whom the matter is pending has a personal bias
or prejudice either against him or in favor of any adverse party, . . . [he] shall
proceed no further.”). The relevant inquiry is “whether a reasonable person with
knowledge of all the facts would conclude that the judge’s impartiality might
reasonably be questioned.” Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1178 (9th
Cir. 2005) (citations and quotations omitted).
The alleged bias “must usually stem from an extrajudicial source.”
Pesnell v. Arsenault, 543 F.3d 1038, 1043-44 (9th Cir. 2008). The Supreme Court
has explained:
First, judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion. In and of
themselves . . . they cannot possibly show reliance upon
an extrajudicial source. . . . Second, opinions formed by
the judge on the basis of facts introduced or events
occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or
partiality 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.

2

Liteky v. United States, 510 U.S. 540, 555 (1994).
Plaintiff asserts that this Judge should be recused from this action
because in a previous action brought by Plaintiff, this Court refused to have
Plaintiff’s filing fee returned and expressed to Plaintiff “disappointment and
disapproval.” The Court rejects this argument as facially insufficient to show bias.
It appears that the action Plaintiff refers to is Cohn v. University of Hawaii, Civ.
No. 01-00628 HG-BMK, which Plaintiff filed on September 24, 2001, and which
reached settlement before this Court on July 1, 2002. Id. at Doc. 23. As a result of
the settlement agreed to by the parties, the action was dismissed with prejudice,
with each party bearing their own costs and attorneys’ fees. Id. at Doc. 24.
Given this record, Plaintiff had no basis to obtain reimbursement of
any filing fees; rather, the parties agreed to each bear their own costs. And in any
event, the refusal to return a filing fee relates to courtroom administration and
shows no “deep-seated favoritism or antagonism that would make fair judgment
impossible.” Liteky, 510 U.S. at 555. Further, this Court’s alleged expression of
“disappointment and disapproval” does not suggest any basis to recuse in this
action over ten years after Plaintiff’s previous action settled. See Pesnell, 543 F.3d
at 1044 (“‘[E]xpressions of impatience, dissatisfaction, annoyance, and even anger’
are not grounds for establishing bias or impartiality, nor are a judge’s efforts at

3

courtroom administration.” (quoting Liteky, 510 U.S. at 555-56)). The Court
therefore DENIES Plaintiff’s Motion for Recusal.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 12, 2012.

/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge

Cohn v. State of Hawaii, Dep’t of Educ., Civ. No. 12-00502 JMS-BMK; ORDER DENYING
PLAINTIFF'S MOTION FOR RECUSAL.
4