Akers et al v. Keszei et al

Filing 395

ORDER Denying 392 Plaintiff's Motion for Recusal. Signed by Judge James C. Mahan on 06//06/2012. (Copies have been distributed pursuant to the NEF - AC)

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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. (Docs. #392 and #393).

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Plaintiff has filed the instant motion because this court’s previous order denying recusal alerted him

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to the fact that several pages from the motion were missing. As this court’s order explained, the previous

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motion abruptly jumped to the certificate of service after only three pages of argument. Despite this court

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taking the opportunity to alert the plaintiff of the misfiling, thereby opening the door to his filing a renewed

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motion, plaintiff accuses the court of purposefully removing the pages from the prior motion having the

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motion entered on the court’s docket. Leaving aside the fact that the court does not have any notice of a

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motion until after the motion is docketed, had this court wanted to engage in such underhanded tactics,

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obviously it would not have told the plaintiff that his motion was incomplete.

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Furthermore, the court notes that the present filing is also incomplete. The motion (doc. #392)

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attaches as an exhibit what purports to be the complete text of the previous motion seeking recusal (doc.

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#386). Plaintiff has provided this exhibit to supply the court with the previously omitted pages. The

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exhibit, however, contains only the first five pages of the previous motion. Page six and the footnotes are

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missing. Thus once more, plaintiff has failed to properly file his documents.

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Regardless, the court will proceed to determine the merits of the present motion to recuse. Pursuant

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to 28 U.S.C. § 455, the presiding judge determines whether recusal is warranted. United States v. Azhocar,

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

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

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Serv. 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 argues that the previously omitted pages argued that the undersigned and Magistrate

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Judge Foley “are extrajudicially involved with a zionist [sic] jewish [sic] organization called the ‘American

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Israeli Political Affairs Committee.” Mot. at 2:1-2.1 Supposedly, the judges assigned to this civil action

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are engaging in ex-parte communications with the assistant United States attorney who is prosecuting

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plaintiff’s criminal case. Plaintiff alleges that the AUSA is a member of AIPAC and “us[ing] her [J]ewish

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religion to cover for her bad acts as an assistant [U]nited [S]tates attorney.” Mot. at pg. 7, n. 2. Thus, it

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appears that the plaintiff is alleging that a purported common membership in “AIPAC” between the judges

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and the AUSA has resulted in extra-judicial bias. The court finds these unfounded allegations as illogical,

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incoherent, and fantastic.

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The court fails to find any extra-judicial facts indicating a “deep-seated favoritism or antagonism.”

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Liteky, 510 U.S. at 541. Recusal under 28 U.S.C. § 455(a) is not necessary in this case.

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The plaintiff also raises other arguments as to why the undersigned should recuse
himself, however, these arguments were addressed by this court’s previous order.
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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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#392) be, and the same hereby is, DENIED.
DATED June 6, 2012.

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UNITED
UN TED
UNITED STATES DISTRICT JUDGE
JU

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