Hartsoe v. State of Montana et al
Filing
26
ORDER denying 19 Motion for Recusal. Signed by Magistrate Judge Jeremiah C. Lynch on 10/19/2016. (TCL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
JOHN HARTSOE,
CV 16-87-M-DLC-JCL
Plaintiff,
ORDER
vs.
STATE OF MONTANA, et al.,
Defendants.
Plaintiff John Hartsoe, appearing pro se, commenced this action with his
complaint filed on July 6, 2016. He is suing numerous private individuals, state
and local governmental employees, and judicial officers alleging they are liable for
violations of his rights which occurred during the course of criminal proceedings
prosecuted against him in state court.
On October 13, 2016, Hartsoe filed a motion requesting the undersigned
United States Magistrate Judge, and the presiding Chief District Judge Dana L.
Christensen, recuse ourselves from further presiding over this action. He cites to
28 U.S.C. §§ 144 and 455 as the legal authority for his motion.
In support of his motion Hartsoe references a prior unspecified civil action
he prosecuted in this Court which I recommended be dismissed, and which Judge
1
Christensen dismissed following my recommendation.1 Hartsoe complains the
dismissal was with prejudice, and he contends, without supporting factual
allegations, that the dismissal was imposed for the purpose of concealing alleged
wrongful and criminal conduct committed by others. Thus, he argues we must
recuse ourselves in view of the dismissal of his prior civil action which he asserts
demonstrates we are biased and prejudiced against him.
Because a motion for disqualification or recusal of a judge must be decided
by the judge whose impartiality is being questioned,2 this order addresses
Hartsoe’s motion only to the extent it applies to me. In that respect, and for the
reasons discussed, Plaintiffs’ motion is denied.
A.
28 U.S.C. § 144
Section 144 of Title 28 of the United States Code provides, in relevant part,
as follows:
Whenever a party to any proceeding in a district court makes and 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. [... The party’s affidavit]
shall be accompanied by a certificate of counsel of record stating that it is
made in good faith.
1
Although unspecified by Hartsoe, the Court presumes he is referring to his
prior civil action in Hartsoe v. Marshall, Cause No. CV 14-225-M-DLC.
2
In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994).
2
28 U.S.C. § 144.
The certificate of good faith required under section 144 must be provided by
a member of the bar, or the movant’s counsel of record. See Robinson v. Gregory,
929 F. Supp. 334, 337-38 (S.D. Ind. 1996). Consequently, a pro se litigant who
has not provided a certificate of good faith from a member of the bar may not
employ the disqualification procedures set forth in 28 U.S.C. § 144. Id. See also
Jimena v. UBS AG Bank, 2010 WL 2650714, *3 (E.D. Cal. 2010) and United
States v. Briggs, 2007 WL 1364682, *1 (D. Idaho 2007).
Hartsoe’s motion for relief under section 144 is not accompanied by a
certificate of counsel as required. Thus, Hartsoe cannot sustain his motion under
section 144.
B.
28 U.S.C. § 455
Section 455, Title 28 U.S.C., provides, in relevant part, as follows:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party[.]
28 U.S.C. § 455(a) and (b).
“Section 455 imposes an affirmative duty upon judges to recuse
3
themselves.” Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1983).
Sections 455(a) and (b)(1) “are to be construed together when the ground for
recusal is the bias or partiality of the trial judge.” United States v. Winston, 613
F.2d 221, 222 (9th Cir. 1980).
Section 455(a) requires disqualification for the appearance of partiality.
What matters under section 455(a) “is not the reality of bias or prejudice but its
appearance[,]” and the test for disqualification is an objective one. Liteky v.
United States, 510 U.S. 540, 548 (1994). Disqualification is warranted if “a
reasonable person with knowledge of all the facts would conclude that the judge’s
impartiality might reasonably be questioned.” Blixseth v. Yellowstone Mountain
Club, LLC, 742 F.3d 1215, 1219 (9th Cir. 2014) (quotation and citation omitted).
The “reasonable person” is not “hypersensitive or unduly suspicious,” and “is not
a ‘partly informed man-in-the-street[.]’” Blixseth, 742 F.3d at 1219, and United
States v. Holland, 519 F.3d 909, 913-14 (9th Cir. 2008). Rather, the reasonable
person is a “well-informed, thoughtful observer[,]” and is “someone who
‘understand[s] all the relevant facts’ and has examined the record and the law.”
Holland, 519 F.3d at 913-14 (citation omitted).
The analysis under section 455(a) is further subject to the “extrajudicial
source” doctrine. Liteky, 510 U.S. at 554. The doctrine requires a consideration
4
of the source of the specific information on which a judge has developed the type
of bias or prejudice that renders a judge subject to recusal. The type of bias or
prejudice necessary for a recusal is “a favorable or unfavorable disposition or
opinion that is somehow wrongful or inappropriate, either because it is
undeserved, or because it rests upon knowledge that the [judge] ought not to
possess[.]” Liteky, 510 U.S. at 550. Thus, under the doctrine, a judge is not
subject to recusal when the knowledge obtained, and resulting opinions formed by
that knowledge, “were properly and necessarily acquired in the course of the
proceedings,” or in earlier proceedings. Liteky, 510 U.S. at 551. The doctrine
requires that the basis for disqualification generally must be “something other than
rulings, opinions formed[,] or statements made by the judge during the course of
trial.” Holland, 519 F.3d at 913-14.
Section 455(b)(1), in contrast to subsection (a), requires disqualification if a
judge has a personal bias or prejudice for or against a party. See Hasbrouck v.
Texaco, Inc., 842 F.2d 1034, 1045 (9th Cir. 1987). Section 455(b)(1) “simply
provides a specific example of a situation in which a judge’s ‘impartiality might
reasonably be questioned’ pursuant to section 455(a).” United States v. Sibla, 624
F.2d 864, 867 (9th Cir. 1980) (citing United States v. Olander, 584 F.2d 876, 882
(9th Cir. 1978)). Subsection 455(b)(1), however, is similarly subject to the
5
“extrajudicial source” doctrine. Liteky, 510 U.S. at 548-551.
Here, Hartsoe’s motion for my disqualification or recusal is based solely
upon the fact that his prior civil action was dismissed. As noted, however, a
judge’s ruling that is based only upon proceedings that transpire in a case cannot
qualify as evidence of a bias or prejudice from an extrajudicial source. Hartsoe
does not identify any extrajudicial source of information on which the prior
dismissal was based as would be necessary to constitute the type of prejudice or
bias contemplated in section 455(b)(1). No extrajudicial source of information
existed in Hartsoe’s prior case, and I affirmatively state I have no bias or prejudice
against Hartsoe.
Therefore, IT IS HEREBY ORDERED that Hartsoe’s motion requesting
recusal or disqualification under either 28 U.S.C. §§ 144 or 455 is DENIED to the
extent the motion is directed at me.
DATED this 19th day of October, 2016.
Jeremiah C. Lynch
United States Magistrate Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?