Akers et al v. Keszei et al

Filing 391

ORDER Denying 386 Plaintiff's Motion for Recusal. IT IS FURTHER ORDERED that the clerk of court administratively close this case due to plaintiff's failure to pay the appropriate filing fee. Signed by Judge James C. Mahan on 5/17/12. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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MONTGOMERY CARL AKERS,

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Plaintiff,
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vs.
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JAMES KESZEI, et al.,
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Defendants. )
__________________________________________)

Case No. 2:07-cv-00572-JCM-GWF
ORDER

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Presently before the court is plaintiff Montgomery Carl Akers’ motion to recuse the undersigned
and Magistrate Judge George W. Foley from this case. (Doc. #386).

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The motion appears incomplete. After three pages of argument, and mid-sentence, it abruptly jumps

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to plaintiff’s certificate of service and supporting exhibits. Nonetheless, from the argument and exhibits

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supplied, the court can glean the primary thrust of plaintiff’s motion. Apparently, plaintiff seeks recusal

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of the judges assigned to this case because they are allegedly biased and partial to the government

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defendants. Furthermore, though the motion does not expressly ask for it, it appears that plaintiff also seeks

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reconsideration of this court’s order revoking plaintiff’s IFP status on the grounds that plaintiff has now

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uncovered a complaint that establishes that he was not incarcerated at the time he filed one of the suits this

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court counted for purposes of the “three strikes” provision of the Prison Litigation Reform Act (“PLRA”),

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28 U.S.C. § 1915.

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1.

Motion to Recuse

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The court interprets plaintiff’s motion for recusal as being brought pursuant to 28 U.S.C. § 455.

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Under § 455, the presiding judge determines whether recusal is warranted. United States v. Azhocar, 581

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F.2d 735, 867–68 (9th Cir. 1978). Section 455(a) is broad, requiring recusal “in any proceeding in which

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[a judge’s] impartiality might reasonably be questioned.” 28 U.S.C. § 455(a); Liljeberg v. Health Serv.

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Acquisition Corp., 486 U.S. 847, 860 n.8 (1988).

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However, § 455 recusal is not unlimited – the source of any alleged bias must be extrajudicial.

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Liteky v. United States, 510 U.S. 540 (1994). Judicial bias or prejudice formed during current or prior

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proceedings is insufficient for recusal unless the judge's actions “display a deep-seated favoritism or

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antagonism that would make fair judgment impossible.” Id. at 541; Pesnell, 543 F.3d at 1044. Thus,

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judicial rulings will support a motion for recusal only “in the rarest of circumstances.” Liteky, 510 U.S. at

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555.

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Here, plaintiff lacks a reasonable, factual basis for questioning either judge’s impartiality. Plaintiff

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cites the fact that both judges disregarded his “sworn statement” regarding his previous litigation history

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and that he was not incarcerated at the time he filed the complaint in Akers v. Sandoval, No. 94-B-2445 in

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the United States District Court for the District of Colorado. However, plaintiff had since October 4, 2011

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(when the motion to revoke his in forma pauperis status was first filed) to gather any materials he needed

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to rebut accusations that he violated the PLRA’s “three strikes” requirement. Even if plaintiff claims that

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he was not on notice that the Sandoval case was at issue in October, then he had since at least February 7,

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2012, when the magistrate judge issued the order to show cause, which specifically cited Sandoval, to

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gather the appropriate documents. Nonetheless, plaintiff failed to provide any documentation to this court

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until after his several deadlines (including extensions) came and went. It was not until plaintiff filed the

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instant motion that he finally provided the court with documents that purport to negate the inference that

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the Sandoval case counts under the PLRA’s “three strikes” provision. Pursuant to plaintiff’s repeated

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failure to provide the court with documents regarding Sandoval, there was no obligation by either judge to

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place credence on plaintiff’s sworn affidavit.

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Plaintiff’s charge that the undersigned exhibited bias by failing to give plaintiff a 30-day extension

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to procure the Sandoval complaint is similarly without merit. As explained above, plaintiff had at least 55

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days, and at the most, 118 days to request a copy of his complaint from the Colorado court. He chose to

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wait until the last minute to seek an extension of his deadline so that he could retrieve this information.

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The court, rather than deny the request outright, granted plaintiff two additional weeks to supply the
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complaint. The complaint never arrived.

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Accordingly, these rulings do not support plaintiff’s charges of bias or favoritism. Indeed, plaintiff

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cites no extra-judicial facts indicating a “deep-seated favoritism or antagonism,” Liteky, 510 U.S. at 541,

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and plaintiff’s other unsupported allegations fail to evidence bias. Recusal under 28 U.S.C. § 455(a) is not

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necessary in this case.

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2.

Motion for Reconsideration

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Plaintiff’s recusal motion includes as an exhibit an order from the District of Colorado attaching

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plaintiff’s Sandoval complaint. Plaintiff alleges that the address affixed to the complaint establishes that

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plaintiff was not incarcerated when he filed the complaint, and therefore it should not be counted pursuant

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to the PLRA’s “three strikes” provision. While this court would be inclined to reconsider its order adopting

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the report and recommendation to revoke plaintiff’s in forma pauperis status, which was based, in part, on

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the Sandoval case, it cannot now do so.

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Plaintiff has appealed this court’s order revoking in forma pauperis status. Plaintiff’s appeal has

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divested this court of jurisdiction to reconsider that order. See Mayweathers v. Newland, 258 F.3d 930, 935

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(9th Cir. 2001) (once a notice of appeal is filed “jurisdiction over the matter being appealed normally

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transfers from the district court to the appeals court.”); see also Griggs v. Provident Consumer Discount

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Co., 459 U.S. 56, 58 (1982) (per curiam) (“The filing of a notice of appeal . . . confers jurisdiction on the

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court of appeals and divests the district court of its control over those aspects of the case involved in the

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appeal.”).

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Accordingly, this court no longer has jurisdiction over the question of plaintiff’s in forma pauperis

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status and cannot revisit its prior ruling. The court will await the determination of the Ninth Circuit. In

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the meantime, the court notes that plaintiff failed to pay the court-ordered filing fee to maintain this cause

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of action. As such, the case will be administratively closed pending any further notice on plaintiff’s in

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forma pauperis status from the appellate court.

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Therefore,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to recuse (doc.

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#386) be, and the same hereby is, DENIED.

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IT IS FURTHER ORDERED that the clerk of the court administratively close this case due to
plaintiff’s failure to pay the appropriate filing fee.
DATED May 17, 2012.

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UNITED STATES DISTRICT JUDGE
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