Caldarone v. Abercrombie et al

Filing 55

ORDER DENYING PLAINTIFF'S MOTIONS TO REASSIGN CASE re 18 MOTION to Reassign Case re 37 MOTION to Reassign Case re 51 MOTION to Reassign Case re 53 Minutes. Signed by Judge BARRY M. KURREN on 02/11/2015. ( eps )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 served by first class mail on 02/12/2015

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RICHARD W. CALDARONE,
Plaintiff,
vs.
GOVERNOR NEIL
ABERCROMBIE, ET AL.,
Defendants.
______________________________

CIV. NO. 14-00523 LEK-BMK

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ORDER DENYING PLAINTIFF’S
MOTIONS TO REASSIGN CASE

ORDER DENYING PLAINTIFF’S MOTIONS TO REASSIGN CASE
Before the Court is Plaintiff Richard W. Caldarone’s (“Plaintiff”)
Motions to Reassign Case (“Motions”). (Docs. 18, 37, 51.) Inasmuch as
Plaintiff’s Motions request that this case be assigned to another magistrate judge,
the Court construes Plaintiff’s Motions to Reassign Case as motions for recusal.
These matters came on for hearing on February 9, 2015. (Doc. 53.) Plaintiff
Richard W. Caldarone appeared pro se; appearing on behalf of Defendants were
Robyn B. Chun and Mary Martin. (See Doc. 53.) After careful consideration of
the Motions, and the arguments made at the hearing, the Court DENIES Plaintiff’s
Motions.
BACKGROUND
Plaintiff filed four Motions to Reassign, seeking to have this case

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reassigned from Magistrate Judge Barry M. Kurren to another magistrate judge.
(Docs. 13, 18, 37, 51.) Plaintiff’s Motions are based primarily on the assertion that
Plaintiff “has filed a Complaint against Judge Kurren (Court of Appeals 9th
District Court in San Francisco)” and “feels it is in the Court’s best interest and his
that Judge Kurren and himself not be placed in an uncomfortable position.” (See,
e.g., Doc. 37 at 1.)
The complaint Plaintiff allegedly filed against me appears to stem
from an order issued by I issued in a related case previously brought by Plaintiff.
See Caldarone v. Joe Otting, CEO, One West Bank, et al., Civ. No. 13-00516
DKW-BMK. In that case, Plaintiff requested that the Court “dismiss” Judge
Kurren on the grounds he is “incapable of impartial judgment.” (See Civ. No. 1300516 DKW-BMK, Doc. 82 at 2, Doc. 71.) Plaintiff’s request was entirely
premised upon his disagreement with my Order Denying Plaintiff’s Ex Parte
Motion to Serve by Publication. (See Civ. No. 13-516 DKW-BMK, Docs. 63, 71,
82.) Specifically, Plaintiff asserted that the Court’s denial of his ex parte motion
constituted obstruction of justice, perjury to my oath of office, and “treason to the
Constitution.” (See generally, Civ. No. 13-516 DKW-BMK, Doc. 71.) Here,
Plaintiff’s Motions are similarly based on my Order denying Plaintiff’s Ex Parte
Motion to Serve by Publication in Caldarone v. Otting, et al., Civ. No. 13-00516
DKW-BMK.

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STANDARD
Recusal is governed by 28 U.S.C. §§ 144 and 455. Under § 144, a
judge must recuse himself when a party to a district court proceeding “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.”
28 U.S.C. § 144. The standard for recusal under 28 U.S.C. § 144 is “whether a
reasonable person with knowledge of all the facts would conclude that the judge’s
impartiality might reasonably be questioned.” United States v. Studley, 783 F.2d
934, 939 (9th Cir. 1986) (citations omitted).
Under § 455(a) “[a]ny justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a). The alleged prejudice must result
from an extrajudicial source, “a judge’s prior adverse ruling is not sufficient cause
for recusal.” Studley, 783 F.2d at 939 (citing Mayes v. Leipziger, 729 F.2d 605,
607 (9th Cir. 1984)); see also United States v. Frias-Ramirez, 670 F.2d 849, 853
n.6 (9th Cir. 1982), cert. denied, 459 U.S. 842 (1982) (“Parties cannot attack a
judge’s impartiality on the basis of information and beliefs acquired while acting in
his or her judicial capacity.”). “28 U.S.C. § 455 requires recusal where a judge’s
impartiality might reasonably be questioned or where he has personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts

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concerning the proceeding.” Hanson v. Palehua Cmty. Ass’n, Civ. No. 12-00616
JMS-RLP, 2013 WL 1187948 (D. Haw. Mar. 20, 2013).
DISCUSSION
On February 9, 2015, in support of the various Motions to Reassign
Case, Plaintiff filed an Affidavit requesting that his case be reassigned to another
Magistrate Judge. (Doc. 54.) In his Affidavit, Plaintiff maintains that I am
“incapable of impartial judgment.” (Doc. 54 at 1.) Plaintiff previously requested
that the Court “dismiss” me on identical grounds in Caldarone v. Otting, et al., Civ.
No. 13-00516 DKW-BMK. In that case, as is here, Plaintiff’s request was entirely
premised upon his disagreement with the Court’s Order Denying Plaintiff’s Ex
Parte Motion to Serve by Publication. (See Civ. No. 13-00516 DKW-BMK, Doc.
63 at 2.)
With regard to recusal under § 144, Plaintiff’s Affidavit fails to allege
any facts that would convince a reasonable person that bias actually exists. See
Studley, 783 F.2d at 939. With regard to recusal under § 455, Plaintiff’s Motions
are entirely based on his disagreement with my prior ruling in Plaintiff’s previous
case. However, “judicial rulings alone almost never constitute a valid basis for a
bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994);
Studley, 783 F.2d at 939. Rather, a moving party must usually present evidence of
bias arising from extrajudicial sources demonstrating “a deep-seated favoritism or

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antagonism that would make fair judgment impossible.” Pesnell v. Arsenault, 543
F.3d 1038, 1044 (9th Cir. 2008); see also Studley, 783 F.2d at 939 (“alleged
prejudice must result from an extrajudicial source”); Deems v. C.I.R., 426 Fed.
Appx. 839, 843 (11th Cir. 2011) (stating that disqualification “may not be
predicated on the judge’s rulings in the instant case or in related cases”) (citation
omitted). Moreover, adverse rulings do not constitute pervasive bias. See Hamm
v. Members of the Bd. of Regents of the State of Fla., 708 F.2d 647, 651 (11th Cir.
1983). Plaintiff has failed to put forth any evidence raising doubts as to my
impartiality, and Plaintiff has failed to present any evidence of bias beyond this
Court’s previous Order Denying Plaintiff’s Ex Parte Motion to Serve by
Publication in Caldarone v. Otting, et al., Civ. No. 13-00516 DKW-BMK.
Accordingly, Plaintiff has failed to establish that recusal or reassignment in this
case is warranted.
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CONCLUSION
For the foregoing reasons, the Court hereby DENIES Plaintiff’s
Motions to Reassign Case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 11, 2015.

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

Caldarone v. Governor Neil Abercrombie, et al., Civ. No. 14-00523 LEK-BMK, ORDER
DENYING PLAINTIFF’S MOTIONS TO REASSIGN CASE.

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