Ogeone v. United States of America

Filing 107

ORDER DENYING "MOTION TO RECUSE CHIEF JUDGE MOLLWAY," DOC. NO. 93 .Signed by JUDGE J. MICHAEL SEABRIGHT on 10/16/2014. (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifica tions received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on Friday, October 17, 2014.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GALINA OGEONE,

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Plaintiff,
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vs.
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UNITED STATES OF AMERICA, )
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Defendant.
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______________________________ )

CIVIL NO. 13-00166 SOM-RLP
ORDER DENYING “MOTION TO
RECUSE CHIEF JUDGE
MOLLWAY,” DOC. NO. 93

ORDER DENYING “MOTION TO RECUSE CHIEF JUDGE MOLLWAY,”
DOC. NO. 93
I. INTRODUCTION
Before the court is pro se Plaintiff Galina Ogeone’s (“Plaintiff”)
“Motion to Recuse Chief Judge Mollway” from this action. Doc. No. 93. This
Motion was referred to the undersigned under 28 U.S.C. § 144 because it asserts
that Chief United States District Judge Susan Oki Mollway (“Judge Mollway”) is
biased and prejudiced against Plaintiff, and is accompanied by an affidavit
attesting that the statements contained in her Motion are true. The matter is
suitable for decision under Local Rule 7.2(d) without an oral hearing. Based on
the following, the Motion is DENIED.
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II. BACKGROUND
The basis for Plaintiff’s assertions of bias and/or prejudice by Judge
Mollway are a series of rulings in this action. The court therefore sets forth the
background necessary to put the Motion in context.
On December 21, 2012, Plaintiff filed her Complaint in the First
Circuit Court of the State of Hawaii naming her dentist, Dr. W. Ruth Yang, as
Defendant. See Doc. No. 1-1, Compl. The Complaint alleges that Plaintiff was
Dr. Yang’s patient at the Kalihi Palama Health Center (“KPHC”) in 2009-2010,
and that Plaintiff was not provided a full refund as promised on dental work with
which she was not satisfied. Plaintiff seeks damages encompassing the full refund
plus the cost of having another dentist provide the services, and an award of
punitive damages.
On April 8, 2013, the United States removed the action to this court,
stating that it was provided a copy of the Complaint on or about April 4, 2013.
Doc. No. 1. On April 10, 2013, the United States filed a Notice of Substitution of
the United States as Defendant. Doc. No. 3. The Notice, filed pursuant to 28
U.S.C. § 2679(d)(1), substituted the United States as Defendant for Dr. Yang
based on the assertion that at the time of Plaintiff’s dental work, Dr. Yang was

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acting within the course and scope of her duties as an employee of KPHC, which
is a federally-funded community health center. Doc. No. 3.
Plaintiff sought remand, which Judge Mollway denied in an Order
Adopting Findings and Recommendations on July 19, 2013. Doc. No. 38. Judge
Mollway explained that the Complaint was removable because it included a tort
claim (despite Plaintiff’s assertions to the contrary) in light of the Complaint’s
request for both punitive damages and for the costs of additional dental work
performed by a third party. Id. at 4-5. Judge Mollway further determined that
removal was timely where the United States had not been properly served. Id. at
5-7. Judge Mollway later denied Plaintiff’s Motion for Reconsideration and
Amended Motion for Reconsideration. Docs. Nos. 42, 44.
On September 30, 2013, Judge Mollway dismissed Plaintiff’s
negligence claim on the basis that Plaintiff had not exhausted her administrative
remedies, and further denied Plaintiff’s request to file an Amended Complaint to
assert a breach of contract claim against Dr. Yang as an individual given that the
United States is the correct Defendant for such claim. Doc. No. 56. The Ninth
Circuit dismissed Plaintiff’s interlocutory appeal of this order for lack of
jurisdiction, Doc. No. 63, and the Supreme Court denied her petition for writ of
certiorari. Doc. No. 65.
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When the action resumed in the district court, the United States
sought to continue the trial date and all unexpired deadlines by five months, and to
reopen the dispositive motions deadline. Doc. No. 67. After Plaintiff proposed
her own schedule to which the United States agreed, Magistrate Judge Richard L.
Puglisi filed an Amended Rule 16 Scheduling Order. Doc. No. 72. Despite the
parties’ earlier agreement, Plaintiff appealed, arguing that the United States failed
to attach the original Rule 16 Scheduling Order and disputing the nondispostive
motions deadline. Doc. No. 73. Plaintiff also filed a motion for default judgment
due to the United States’ failure to attach the original Rule 16 Scheduling Order to
its Motion to Amend. Doc. No. 74. On June 25, 2014, Judge Mollway denied the
appeal and denied the motion for default judgment as baseless -- there was no
requirement for the United States to provide the original Rule 16 Scheduling
Order to the Motion to Amend. Doc. No. 79.
On September 2, 2014, Judge Mollway denied Plaintiff’s “Motion to
Move Backscheduled Deadlines for Non-Dispositive Motions on October 21,
2014.” Doc. No. 86. Judge Mollway explained that Plaintiff’s Motion lacked
clarity, and did not include a reason to change any deadline. Id.
On September 2, 2014, the United States filed a Motion for Summary
Judgment. Doc. No. 87. On September 8, 2014, Plaintiff filed a Motion to
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Compel Production of Documents. Doc. No. 90. While these Motions were
pending, on September 26, 2014, Plaintiff filed her Motion to Recuse. The United
States did not file an optional response to the Motion to Recuse. See Doc. No. 95.
III. STANDARD OF REVIEW
The applicable standards for disqualification or recusal of a federal
judge are found in 28 U.S.C. §§ 144 and 455. “Under both recusal statutes, the
substantive standard is whether a reasonable person with knowledge of all the
facts would conclude that the judge’s impartiality might reasonably be
questioned.” Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (citations,
quotations, and alterations omitted). The alleged bias, however, “must usually
stem from an extrajudicial source.” Id. The Supreme Court has explained the
“extrajudicial source” doctrine:
For all these reasons, we think that the “extrajudicial
source” doctrine, as we have described it, applies to
§ 455(a). As we have described it, however, there is not
much doctrine to the doctrine. 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
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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.
Liteky v. United States, 510 U.S. 540, 554-55 (1994).
The Supreme Court further explained the rule’s application:
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 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. . . . 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 shorttempered judge’s ordinary efforts at courtroom
administration -- remain immune.

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Id. at 555-56. Further, “mere conclusory allegations . . . are insufficient to support
a claim of bias or prejudice such that recusal is required.” United States v.
$292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995), as amended (May
24, 1995) (quoting United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980)).
IV. DISCUSSION
The basis of Plaintiff’s Motion to Recuse is scattered and unclear.
Although Plaintiff makes a number of vague assertions that Judge Mollway is
prejudiced against Plaintiff and favors the United States, the only evidence
Plaintiff points to in support of these allegations are Judge Mollway’s rulings. In
particular, Plaintiff argues that the Judge Mollway is partial to the United States
because Judge Mollway (1) allowed the United States to substitute itself as a
Defendant for Dr. W. Ruth Yang; (2) denied Plaintiff’s Motion to Remand;
(3) denied Plaintiff’s Motion to Amend the Complaint; (4) denied Plaintiff’s
Motion to Compel Discovery; and (5) denied Plaintiff’s Motion to move back
scheduled deadlines. And interspersed amongst discussion regarding these
rulings, Plaintiff makes conclusory allegations of bias that are devoid of any facts.
See, e.g., Doc. No. 93, Mot. at 4 (“That is the main motivation for Judge Mollwai
[sic] impartiality.”), at 6 (asserting that Judge Mollway “provid[ed] personal
favors related to the judicial office”).
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Judge Mollway’s rulings, however, cannot form the basis of a motion
to disqualify -- on their own they are not proof of bias or misconduct, and after
review of the record the court easily concludes that Judge Mollway did not
“display a deep-seated favoritism or antagonism that would make fair judgment
impossible.” See Liteky, 510 U.S. at 555. Stripping away these rulings from the
Motion, left remaining are only Plaintiff’s conclusory and unsupported statements
of bias. A reasonable person with knowledge of all facts of this case would have
simply no reason to conclude that Judge Mollway’s “impartiality might reasonably
be questioned.” See Pesnell, 543 F.3d at 1043.
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V. CONCLUSION
After careful review of the record, the court finds no basis for Judge
Mollway’s disqualification. Plaintiff’s Motion to Recuse Chief Judge Mollway,
Doc. No. 93, is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 16, 2014.

/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge

Ogeone v. United States, Civ. No. 13-00166 SOM/RLP, Order Denying “Motion to Recuse Chief
Judge Mollway,” Doc. No. 93
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