Peroulis v. Kozak et al

Filing 240

ORDER Denying 235 Motion for Recusal of Magistrate Judge. Signed by Magistrate Judge George Foley, Jr. on 7/7/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TONY PEROULIS,

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Plaintiff,
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vs.
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PAUL KOZAK a/k/a ZACHARY KRISTON
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a/k/a ZACHARY KING, et al.,
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Defendants.
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__________________________________________)

Case No. 2:07-cv-00284-JCM-GWF
ORDER
Motion Requesting Recusal (#235)

This matter is before the Court on Defendant Zachary Kriston a/k/a Paul Kozak’s Motion
Requesting Recusal (#235), filed May 26, 2011.
Defendant requests that the undersigned recuse himself because of adverse rulings entered

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against Defendant in this case. Generally, Defendant claims that the adverse rulings stem from the

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undersigned’s alleged “personal bias prejudice, and extrajudicial efforts to aid [Plaintiff]” and (2)

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the undersigned’s alleged bias against Defendant due to his status as an incarcerated individual.

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There are two federal statutes which govern recusal or disqualification of a judge – 28 U.S.C. § 144

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and § 455. Defendant has failed to meet the standard under either statute to support his current

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request.

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Pursuant to 28 U.S.C. § 144, a party seeking recusal must set forth, by affidavit, facts and

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reasons for the belief that bias or prejudice exists. Although a motion to recuse under section 144

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is generally assigned to another judge, Hussein v. University of Community College System of

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Nevada, 2010 WL 3385298 (D. Nev. 2010), “the legal sufficiency of the motion is first determined

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by the judge against whom the recusal is sought.” Id. (citation omitted). The standard for recusal

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is “whether a reasonable person with knowledge of all the facts would conclude that the judge’s

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impartiality might be questioned.” E.g., United States v. Studley, 783 F.2d 934, 939 (9th Cir.

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1986). Alleged prejudice must result from an extrajudicial source. Id. Neither a judge’s prior

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adverse ruling nor a litigant’s suit or threatened suit against the judge is sufficient cause for recusal.

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Id. at 939-40; see also United States v. Ross, 116 F.3d 487 (9th Cir. 1997) (cannot create a basis for

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recusal by naming federal judges in ongoing litigation efforts). A judge has a duty not to recuse

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when there is no sound reason to do so. United States v. Coppola, 2008 WL 4186253 (D. Nev.

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2008).

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The primary reasons identified for recusal are Defendant’s disagreement with this Court’s

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prior orders and a case he filed naming the undersigned as a potential defendant (case No. 2:09-cv-

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00708-RCJ-LRL). Neither of these reasons is sufficient to warrant recusal. Defendant has not

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identified any extrajudicial source of bias or prejudice that would permit a reasonable person with

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knowledge of all the facts to conclude the undersigned impartiality might reasonably be questioned.

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The substantive test for bias or prejudice is identical in sections 144 and 28 U.S.C. § 455.

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Serino v. Florisi, 2010 WL 2927304 (D. Nev. 2010) (citing United States v. Sibla, 624 F.2d 864,

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867 (9th Cir. 1980)). Section 455 is self-enforcing on the part of the judge. See e.g., United States

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v. Jaramillo, 745 F.2d 1245, 1248 (9th Cir. 1984). Under section 455, a judge is required to recuse

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“[w]here he has a personal bias or prejudice concerning a party, or personal knowledge of disputed

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evidentiary facts concerning the proceeding” or “in any proceeding in which his impartiality might

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reasonably be questioned.” 28 U.S.C. §§ 455(a), (b)(1). Here, Defendant advances the same

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argument for disqualification under section 455 as he did under section 144. They fail for the

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reasons previously identified. Neither dissatisfaction with prior orders nor filing suit, or

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threatening to file suit, are sufficient grounds for recusal. There is simply no evidence of prejudice

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or bias before the Court that would warrant recusal. Accordingly,

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IT IS HEREBY ORDERED that Defendant Zachary Kriston a/k/a Paul Kozak’s Motion
Requesting Recusal (#235) is denied.
DATED this 7th day of July, 2011.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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