Ogeone v. United States of America
Filing
80
ORDER DENYING MOTION TO RECUSE MAGISTRATE JUDGE PUGLISI re 78 -Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/26/2014. (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). Galina Ogeone served by first class mail at the address of record on June 26, 2014.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
GALINA OGEONE,
)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
)
Defendant.
_____________________________ )
CIVIL NO. 13-00166 SOM/RLP
ORDER DENYING MOTION TO
RECUSE MAGISTRATE JUDGE
PUGLISI
ORDER DENYING MOTION TO RECUSE MAGISTRATE JUDGE PUGLISI
Plaintiff Galina Ogeone moves to recuse Magistrate
Judge Richard Puglisi.
The motion is denied.
First, much of the motion concerns actions that Ogeone
alleges were taken by United States Attorney Florence Nakakuni.
There is no basis for disqualifying a judge based on alleged
actions by an attorney.
Second, the actions that Ogeone complains Magistrate
Judge Puglisi himself took consist entirely of orders she says he
should not have issued.
Ogeone's remedy, if she is contending
that the orders were not supported by law, is to seek review
through the appellate process, not to seek disqualification of
the judge.
By way of background, this court notes that Ogeone,
proceeding pro se, filed suit in state court against a dentist.
The United States removed the case, contending that the dentist
was a federal employee and that the United States was the proper
defendant.
Ogeone thereafter sought to have the case remanded to
state court.
When the court denied the motion to remand, Ogeone
appealed to the Ninth Circuit, which dismissed the appeal on the
ground that the order appealed from was not final or appealable.
At this point, having dismissed part of Ogeone's claims, the
court has pending before it a contract claim asserted by Ogeone.
Ogeone now seeks recusal of Magistrate Judge Puglisi, arguing
that a number of his pretrial rulings were improper and
suggesting, without pointing to any actual evidence, that there
has been ex parte communication between Magistrate Judge Puglisi
and the United States Attorney.
Ogeone appears to be seeking Magistrate Judge Puglisi's
recusal under 28 U.S.C. § 455(a).
Section 455(a) provides: “Any
justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.”
Section 455 does not require
that a recusal request be supported by any affidavit or
declaration.
Recusal may alternatively be sought under 28 U.S.C.
§ 144, but § 144 requires submission of "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."
The declaration must "state the facts and the
reasons for the belief that bias or prejudice exists."
Id.
No
such affidavit or declaration having been submitted, this court
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treats Ogeone's recusal request as brought under § 455(a),
although the court notes that, even if it treated Ogeone's
memorandum as if it were a declaration submitted under § 144, the
court would not reach a different result.
Ogeone claims that Magistrate Judge Puglisi has
"discriminated against her as a Pro-se and Russian citizen."
She
cites nothing in the record that evidences any bias against pro
se litigants or against Russian citizens.
She instead infers
solely from Magistrate Judge Puglisi’s rulings that those rulings
must be based on such discrimination.
Absent at least some
evidence of such a link, this court declines to make the
inference Ogeone urges.
Ogeone does not even suggest that the
alleged bias against pro se litigants and Russians predates the
filing of her case.
Instead, she appears to be suggesting that
the alleged discriminatory animus has arisen in this very case.
In Liteky v. United States, 510 U.S. 540 (1994), the
Supreme Court discussed § 455(a) at length.
Although Liteky made
it clear that any alleged bias or prejudice need not derive from
an "extrajudicial source" to warrant recusal for bias or
prejudice under § 455(a), Liteky noted the difficulties inherent
in any recusal request based on predispositions that allegedly
develop in the course of judicial proceedings.
said:
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The Supreme Court
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
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.
Ogeone does not identify conduct justifying recusal.
First, Ogeone complains that Magistrate Judge Puglisi recommended
against remanding the case to state court.
Ogeone says that, in
so recommending, “Judge Puglisi broke the LAW, he did not follow
FRCP, but provided favor to government professional from HHS, to
US Attorney Nakakuni and the Defendant."
Ogeone's remedy was
clearly to seek review, not to seek recusal.
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In fact, Ogeone did
submit her objections to the district judge, who adopted
Magistrate Judge Puglisi’s recommendation.
Second, Ogeone complains that Magistrate Judge Puglisi
amended a scheduling order.
She argues that there must have been
some kind of secret communication between Magistrate Judge
Puglisi and the moving attorney, because, absent such
communication, Magistrate Judge Puglisi could not have known what
opposing counsel was seeking to have amended.
sense.
This makes no
Like Ogeone herself, Magistrate Judge Puglisi and
opposing counsel had access to documents previously filed in this
case.
In any event, the Magistrate Judge indicated in a minute
order that he understood Ogeone to have agreed to the amendment.
Indeed, nothing in the recusal motion indicates any specific
prejudice to Ogeone flowing from the amendment.
None of the matters raised by Ogeone, either alone or
in combination, supports recusal.
Even if a judge were to
display a negative attitude toward a party, which Ogeone does not
suggest occurred, that would not require recusal.
As the Supreme
Court said in Liteky:
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
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a bench trial) necessary to completion of the
judge's task.
510 U.S. at 550-51.
Because the record does not support the recusal of
Magistrate Judge Puglisi, the court denies Ogeone's motion
seeking that recusal.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 26, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Galina Ogeone v. United States of America; Civil No. 13-00166
SOM/RLP, ORDER DENYING MOTION TO RECUSE MAGISTRATE JUDGE PUGLISI
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