McCarty v. Roos et al

Filing 294

ORDER denying 291 Motion for Recusal of District Judge James C. Mahan. Signed by Judge James C. Mahan on 9/8/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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ROBERT JOSEPH MCCARTY,

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Plaintiff(s),

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ORDER

v.
JOHN V. ROOS, et al.,

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Case No. 2:11-CV-1538 JCM (NJK)

Defendant(s).
Presently before the court is pro se plaintiff Robert Joseph McCarty’s (hereinafter
“plaintiff”) motion to recuse federal judge James C. Mahan. (Doc. # 291).

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Plaintiff claims that recusal is necessary to “prevent a manifest injustice.” (Doc. # 291).

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In particular, plaintiff alleges that, in denying plaintiff’s prior motions, Judge Mahan

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inappropriately failed to examine all of the relevant information and law identified by plaintiff.

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(Doc. # 289).

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personal liberties and/or wantonly refused to provide due process and equal protection . . . .”

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(Doc. # 291).

Plaintiff argues that Judge Mahan has “deliberated violated this Plaintiff’s

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In support of his motion, plaintiff cites legal authority and case law that do not relate to

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recusal. See, e.g., U.S. Const. Art. VI (“all executive and judicial Officers . . . shall be bound by

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Oath or Affirmation, to support this Constitution . . . .”); Alvarez v. QPI Multipress, Inc., 2007

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WL 1988724 (N.D.N.Y. 2007) (granting motion to reconsider but not discussing recusal);

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Marshall v. Jerrico, Inc., 446 U.S. 238 (reversing and remanding case on due process grounds

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where recusal was not at issue); Stone v. Powell, 428 U.S. 465, 483 n. 35 (1976) (denying habeas

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relief to state prisoners based on application of exclusionary rule).

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James C. Mahan
U.S. District Judge

Pursuant to 28 U.S.C. § 455, the presiding

judge determines whether recusal is

warranted. United States v. Azhocar, 581 F.2d 735, 867–68 (9th Cir. 1978). Section 455(a) is

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broad, requiring recusal “in any proceeding in which [a judge’s] impartiality might reasonably be

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questioned.” 28 U.S.C. § 455(a); Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860

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n.8 (1988).

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However, for section 455 recusal to be warranted, the source of any alleged bias must

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generally be extrajudicial. Liteky v. United States, 510 U.S. 540, 551 (1994). Judicial bias or

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prejudice formed during current or prior proceedings is insufficient for recusal unless the judge's

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actions “display a deep-seated favoritism or antagonism that would make fair judgment

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impossible.” Id. at 555. Thus, judicial rulings will support a motion for recusal only “in the

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rarest of circumstances.” Liteky, 510 U.S. at 555.

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Plaintiff’s only allegation of impropriety is Judge Mahan’s failure to consider sources of

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international law cited by plaintiff in support of his prior motions. (Doc. # 291). Plaintiff’s most

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recent motions requested, among other things, permission to file an interlocutory appeal,

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recognition of “torture litigation rights,” and judicial notice of numerous documents and

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international legal standards. (Docs. # 270, 271, 284).

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The court’s order denying these motions explains that the court considered plaintiff’s

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referenced sources but concluded that they were either not judicially noticeable or were

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inapplicable to the remaining state law claim in the case. (Doc. # 289).

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Plaintiff has not identified any action of Judge Mahan indicating judicial bias or

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prejudice. The court properly considered the legal standards cited by plaintiff and found them to

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be inapplicable. Further, any failure to consider plaintiff’s sources of law was not extrajudicial

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and does not indicate a “deep-seated favoritism or antagonism.”

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Therefore, recusal under 28 U.S.C. § 455(a) is not necessary in this case.

Liteky, 510 U.S. at 541.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to

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recuse federal judge James C. Mahan, (doc. # 291), be, and the same hereby is, DENIED
DATED September 8, 2014.

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James C. Mahan
U.S. District Judge

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UNITED STATES DISTRICT JUDGE
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