Caldarone v. Abercrombie et al

Filing 82

ORDER DENYING PLAINTIFF RICHARD W. CALDARONE'S "MOTION TO SEEK RELIEF FROM JUDGE LESLIE KOBAYASHI'S MOTIONS TO TERMINATE, DENY, MOOT, ETC. AND HER REQUESTS TO NOT DISQUALIFY HERSELF" re 79 Motion To Seek Relief. Signe d by JUDGE SUSAN OKI MOLLWAY on 05/08/2015. (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 05/11/2015

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

RICHARD W. CALDARONE,

)
)
Plaintiff,
)
)
vs.
)
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GOV. NEIL ABERCROMBIE;
)
DAVID LOUIE; KEALII LOPEZ; )
GERARD CLAY; ROBERT
)
CHAPMAN; JUDGE RON
)
IBARRA,
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Defendants.
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_____________________________ )

CIVIL NO. 14-00523 LEK-BMK
ORDER DENYING PLAINTIFF
RICHARD W. CALDARONE'S
"MOTION TO SEEK RELIEF
FROM JUDGE LESLIE
KOBAYASHI'S MOTIONS TO
TERMINATE, DENY, MOOT, ETC.
AND HER REQUESTS TO NOT
DISQUALIFY HERSELF"

ORDER DENYING PLAINTIFF RICHARD W.
CALDARONE'S "MOTION TO SEEK RELIEF FROM JUDGE
LESLIE KOBAYASHI'S MOTIONS TO TERMINATE, DENY, MOOT,
ETC. AND HER REQUESTS TO NOT DISQUALIFY HERSELF"
Plaintiff Richard Caldarone has filed a motion with the title "Motion To
Seek Relief from Judge Leslie Kobayashi's Motions To Terminate, Deny, Moot,
Etc. and Her Requests To Not Disqualify Herself." This motion is either a new
motion seeking the disqualification of Judge Leslie Kobayashi or a motion for
reconsideration of Judge Kobayashi's denial of an earlier disqualification motion.
Whether Caldarone intends his motion to be a new disqualification request or a
reconsideration request, or both, the court now denies his most recent motion.

Caldarone's motion includes an affidavit, which appears to have been duly
notarized. The court therefore treats this motion as brought under 28 U.S.C.
§ 144, which requires that, when a party 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."
Caldarone's affidavit consists of nothing more than allegations that Judge
Kobayashi is biased because she has repeatedly ruled against him.
Disqualification under § 144 is required when "a reasonable person with
knowledge of all the facts would conclude that the judge's impartiality might
reasonably be questioned." United States v. Hernandez, 109 F.3d 1450, 1453 (9th
Cir. 1997). Disqualification is not required just because a judge forms a negative
opinion of a party during ongoing proceedings. United States v. Frias-Ramirez,
670 F.2d 849, 853 N.6 (9th Cir. 1982). In fact, the United States Supreme Court
has made it clear that remarks that are disapproving of or even hostile to a party
will not ordinarily be sufficient to support a bias or partiality challenge. Liteky v.
United States, 510 U.S. 540, 555 (1994). Instead, a judge must display a
deep-seated favoritism or antagonism that would make fair judgment impossible.
Id.
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Here, Caldarone points to no actually disapproving or hostile remarks by
Judge Kobayashi. He identifies no negative opinion she has of him. Instead, he
concludes that she must be biased solely because she has not granted his motions.
But a "judge's prior adverse ruling is not sufficient cause for recusal." Taylor v.
Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993). If adverse rulings
were sufficient for disqualification, then no case could ever conclude, as every
unsuccessful litigant would seek disqualification, and an endless round of judges
could conceivably be assigned to and then disqualified from the case if those
judges similarly ruled against the same party. This would allow an unsuccessful to
control the use of judicial resources.
Even if Judge Kobayashi's prior rulings turn out to be deemed incorrect by a
higher court, that would not, absent egregious conduct by her, require her removal
from Caldarone's case. See United States v. McTiernan, 695 F.3d 882, 893 (9th
Cir. 2012) ("Although this court concluded that Judge Fischer erred in her
September 25, 2007 decision, her doesn't-even-come-close comment was not so
egregious as to require her removal from this case."). The only purportedly
egregious conduct Caldarone points to are Judge Kobayashi's rulings in his case.
Given these circumstances and the applicable law, the court denies
Caldarone’s "Motion To Seek Relief."
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APPROVED AND SO ORDERED.
DATED: Honolulu, Hawaii, May 8, 2015.

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

Richard W. Caldarone v. Gov. Neil Abercrombie, et al.; CIVIL NO. 14-00523
LEK-BMK
ORDER DENYING PLAINTIFF RICHARD W. CALDARONE'S "MOTION TO
SEEK RELIEF FROM JUDGE LESLIE KOBAYASHI'S MOTIONS TO
TERMINATE, DENY, MOOT, ETC. AND HER REQUESTS TO NOT
DISQUALIFY HERSELF"
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