Poulson v. Norco Medical Supply et al
ORDER denying 10 Motion for Recusal. Signed by Magistrate Judge Jeremiah C. Lynch on 1/31/2017. (TCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
KERMIT TY POULSON,
NORCO MEDICAL SUPPLY, and
HARRINGTON MEDICAL SUPPLY,
On January 30, 2016, Plaintiff Kermit Poulson filed a motion requesting
that I recuse myself from presiding over this action. In support of his motion
Poulson believes I improperly allowed a prior civil action he filed to proceed in
the Missoula Division of this Court which he believes was the wrong division.
Additionally, Poulson asserts I have issued rulings in his prior civil cases
improperly influenced by partiality and bias. Poulson, however, provides no
further explanation of his grounds for the motion.
A motion to recuse must be decided by the judge whose impartiality is being
questioned. In re Bernard, 31 F.3d 842, 843 (9th Cir. 1994). For the reasons
stated, Poulson’s motion is denied.
Because Poulson does not identify an express statutory basis for his motion,
I will construe it as a motion for my disqualification under 28 U.S.C. § 455.1
Section 455 is a self-executing disqualification statute. It provides in relevant part
(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, or
personal knowledge of disputed evidentiary facts concerning the
28 U.S.C. § 455(a) and (b).
Section 455(a) requires disqualification for the appearance of partiality.
Section 455(b)(1), in contrast, requires disqualification if a judge has a personal
Alternatively, Poulson’s motion could be construed as filed pursuant to 28
U.S.C. § 144. Section 144 requires, inter alia, that the motion “be accompanied by
a certificate of counsel of record stating that it is made in good faith.” The
certificate of good faith 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). Here, Poulson has not provided a certificate of good faith from
an attorney in support of his request. Thus, I will not construe his motion as
invoking the provisions of section 144.
bias or prejudice for or against a party. See Hasbrouck v. Texaco, Inc., 842 F.2d
1034, 1045-46 (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) (quoting United States v. Olander, 584 F.2d 876, 882 (9th Cir.
What matters under § 455(a) “is not the reality of bias or prejudice but its
appearance.” Liteky v. United States, 510 U.S. 540, 548 (1994). The test for
disqualification under § 455(a) is an objective one, pursuant to which recusal is
appropriate if “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).
This “reasonable third-party observer” is not “hypersensitive or unduly
suspicious,” and “is not a ‘partly informed man-in-the-street[.]’” United States v.
Holland, 519 F.3d 909, 914 (9th Cir. 2008). Rather, the reasonable person is a
“well-informed, thoughtful observer,” and “someone who ‘understands all the
relevant facts’ and has examined the record and the law.” Holland, 519 F.3d at
914. It is important that this standard “‘not be so broadly construed that it
becomes, in effect, presumptive, so that recusal is mandated upon the merest
suggestion of personal bias or prejudice.’” Holland, 519 F.3d at 913 (quoting
United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).
It is well-established that disqualification under § 455(a) is limited by the
extrajudicial source doctrine, “which generally requires as a basis for recusal
something other than rulings, opinions formed or statements made by the judge
during the course of trial.” Holland, 519 F.3d at 914. Under this doctrine,
“judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky, 510 U.S. at 555. “[O]nly in the rarest circumstances” will
judicial rulings “evidence the degree of favoritism or antagonism required when
no extrajudicial source is involved.” Liteky, 510 U.S. at 555.
Likewise, “opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a deepseated favoritism or antagonism that would make fair judgment impossible.”
Liteky, 510 U.S. at 555. Absent any extrajudicial source, a judge’s “favorable or
unfavorable predisposition” will be characterized as bias or prejudice only “if it is
so extreme as to display clear inability to render fair judgment.” Liteky, 510 U.S.
“[J]udges are not to recuse themselves lightly under § 455(a)” and should
participate in cases assigned if there is no legitimate reason for recusal. United
States v. Sierra Pacific Industries, 2010 WL 4777842 *6 (E.D. Cal. 2010)
(quoting United States v. Synder, 235 F.3d 42, 45 (1st Cir. 2000)); Holland, 519
F.3d at 912. In other words, judges “must not simply recuse out of an abundance
of caution when the facts do not warrant recusal. Rather, there is an equally
compelling obligation not to recuse where recusal is not appropriate.” Sierra
Pacific Industries, 2010 WL 4777842 *2 (citing Holland, 519 F.3d at 912).
Poulson’s sole stated basis for my recusal is predicated on my alleged
conduct in his prior civil actions, i.e. allegedly allowing an improperly venued
case to proceed, and issuing biased rulings. Thus, in substance, Poulson’s
arguments amount to nothing more than a complaint about my rulings in prior
litigation. But as stated, mere adverse rulings, without more, do not provide a
basis for my disqualification.
Poulson may be dissatisfied with my rulings, but it is well-established that
judicial rulings in prior proceedings do not, in and of themselves, “constitute a
valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555. Poulson has
not shown that my impartiality can reasonably be questioned. Nor has he pointed
to anything showing of the “the degree of favoritism or antagonism required” to
warrant recusal under § 455(a) where, as here, “no extrajudicial source is
involved.” Liteky, 510 U.S. at 555.
To recuse myself under the circumstances would be to encourage misuse of
28 U.S.C. § 455. In fact, I have an obligation to not recuse myself under these
circumstances. See e.g. In re Yellowstone Mountain Club, LLC, 2011 WL 766979
*5 (Bkrtcy. D. Mont. 2011) (recognizing that a judge has a “corresponding
obligation to not recuse and to serve on assigned cases when no reason to recuse
Because Poulson has not identified any legitimate basis for my recusal
under § 455(a) or (b), IT IS ORDERED that Poulson’s motion for recusal is
DATED this 31st day of January, 2017.
Jeremiah C. Lynch
United States Magistrate Judge
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