Hartsoe v. State of Montana et al

Filing 33

ORDER denying 19 MOTION for Recusal. Signed by Judge Dana L. Christensen on 11/15/2016. Mailed to Hartsoe. (TAG, ) Modified on 11/15/2016: mailed to Heisel, Umphrey (TAG, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
CV 16-87-M-DLC-JCL

JOHN HARTSOE,
Plaintiff,

ORDER
vs.
STATE OF MONTANA, et al.,
Defendants.
Plaintiff John Hartsoe ("Hartsoe"), appearing pro se, moves the undersigned
to recuse himself from this case, as well as United States Magistrate Judge
Jeremiah C. Lynch. In his motion, Hartsoe alleges that Judge Lynch and the
undersigned concealed the alleged criminal conduct of third parties and now must
recuse ourselves. In support ofHartsoe's motion, he points to an unidentified civil
case in which I adopted Judge Lynch's recommendation to dismiss the case. 1 For
the reasons explained below, Hartsoe's motion will be denied as it pertains to the
undersigned. See In re Bernard, 31F.3d842, 843 (9th Cir. 1994) (motion to
disqualify judge must be decided by the very judge whose impartiality is being
,:

1

Judge Lynch understood this case to be Hartsoe v. Marshall et al., Cause No. CV
14-225-M-DLC. The Court disagrees with Judge Lynch and believes the case Hartsoe was
referencing is Hartsoe v. McNeil et al., Cause No. CV 14-210-M-DLC

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questioned). 2
Hartsoe brings his motion under 28 U.S.C. §§ 144 and 455. Under §144:
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.
28 U.S.C. §144. However, the affidavit discussed in§ 144 must "be accompanied
by a certificate of counsel of record stating that it is made in good faith." Id. In
cases where the movant is acting pro se, courts have found that a member of the
bar may sign the certificate of good faith. Jimena v. UBS AG Bank, 2010 WL
2650714, at *3 (E.D. Cal. 2010) (citations omitted). Nonetheless, "[p]rocedural
requirements under section 144 are strictly construed." United States v. Bell, 79 F.
Supp. 2d 1169, 1172 (E.D. Cal. 1999).
Here, Hartsoe's motion is not accompanied by a certificate of counsel.
Hartsoe's motion will thus be denied under 28 U.S.C. § 144 for failing to adhere to
the section's procedural requirements.
Additionally, as previously discussed, Hartsoe also brings his motion under
28 U.S.C. § 455. This statute provides that a "judge of the United States shall

2

Judge Lynch denied the motion for recusal as it pertained to him on October 19, 2016.
(Doc. 26).

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disqualify himself in any proceeding in which his impartiality might reasonably be
questioned." 28 U.S.C. § 455(a). This section goes on to list numerous examples
of circumstances warranting disqualification, including when a judge harbors "a
personal bias or prejudice concerning a party." 28 U.S.C. § 455(b)(1 ). The test
for recusal under § 455 is objective, i.e., "whether a reasonable person with
knowledge of all the facts would conclude that the judge's impartiality might
reasonably be questioned." Herrington v. County ofSonoma, 834 F.2d 1488, 1502
(9th Cir. 1987) (quoting United States v. Nelson, 718 F.2d 315, 321 (9th Cir.
1983)). Under this analysis, a "reasonable person" means a "well-informed,
thoughtful observer," in contrast to a "hypersensitive or unduly suspicious person"
Clemens v. U.S. Dist. Ct.for C. Dist. of California, 428 F.3d 1175, 1178 {9th Cir.

2005).
In addition to the analysis under§ 455, courts "also apply the general rule
that questions about a judge's impartiality must stem from 'extrajudicial' factors,
that is, from sources other than the judicial proceeding at hand. Id. (citations
omitted); see also United States. v. Grinnell Corp., 384 U.S. 563, 583 (1966)
("The alleged bias and prejudice must stem from an extrajudicial source and result
in an opinion on the merits on some basis other than what the judge learned from
his participation in the case."). Put another way, "for a judge to be disqualified for
bias or prejudice under [28 U.S.C. § 455(b){l)], the bias or prejudice must be
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personal, as opposed to judicial." Charles Alan Wright et al., Federal Practice

and Procedure vol. 13D, § 3542, 39 (West 2005). This means that the basis for
recusal must be "something other than rulings, opinions formed[,] or statements
made by the judge during the course of trial." UnitedStates v. Holland, 519 F.3d
909, 913-914 (9th Cir. 2008) (citing Liteky v. United States, 510 U.S. 540,
554-556 (1994)); see also Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984)
("A judge's previous adverse ruling alone is not sufficient bias.").
Here, after the reviewing the motion, it appears that the only evidence of the
undersigned's alleged bias against Hartsoe is the dismissal of his previous civil
case, Hartsoe v. McNeil. This dismissal, Hartsoe contends, was an attempt by this
Court to conceal the criminal actions of the defendants in Hartsoe v. McNeil. As
mentioned above, a judge's previous adverse ruling does not qualify as a
extrajudicial source of bias. Because this is the only evidence of the
undersigned's alleged bias against Hartsoe, his motion must be denied. 3
Accordingly,
IT IS ORDERED that Plaintiff John Hartsoe's Motion for Recusal (Doc. 19)
is DENIED to the extent it pertains to the undersigned.

3

The undersigned also affirmatively states that I have no prejudice or bias against

Hartsoe.

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Dated this

I 5~day of November, 20

6.

..
Dana L. Christensen, Chief Judge
United States District Court

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