Anoruo v. Shinseki

Filing 158

ORDER Denying 153 Plaintiff's Motion to Set Aside 155 Motion for Recusal of District Judge. Signed by Judge James C. Mahan on 10/9/2014. (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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JOSEPH CHIDI ANORUO,

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Case No. 2:12-CV-1190 JCM (GWF)
Plaintiff(s),

ORDER

v.
ROBERT A. MCDONALD,

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Defendant(s).

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Presently before the court is pro se plaintiff Joseph Chidi Anoruo’s (hereinafter

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“plaintiff”) motion to set aside order. (Doc. # 153). Defendants Erick K. Shinseki and Robert A.

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McDonald (hereinafter “defendants”) filed a response, (doc. # 154), and plaintiff filed a reply,

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(doc. # 156), followed by an amended reply, (doc. # 157).

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Also before the court is plaintiff’s motion for recusal. (Doc. # 155).

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A. Motion to set aside

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On February 18, 2014, the court granted defendants’ motion for summary judgment.

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(Doc. # 119). On February 19, 2014, the clerk entered judgment and closed the case. (Doc. #

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120). On February 28, 2014, plaintiff filed a notice of appeal. (Doc. # 125).

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Plaintiff also filed a motion for reconsideration, which the court denied on July 10, 2014.

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(Doc. # 144). Plaintiff then filed a motion to reopen the case, which the court denied on August

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28, 2014. (Doc. # 152). The court indicated in its order that it lacked jurisdiction over the case

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because plaintiff has appealed the court’s grant of summary judgment to the Ninth Circuit. (Doc.

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# 152). Plaintiff now moves the court to set aside its August 28, 2014, order. (Doc. # 153).

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Defendants respond asking the court to vacate its August 28, 2014, order denying the

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motion to reopen case on jurisdictional grounds. (Doc. # 154). Defendants contend that the

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court had jurisdiction to rule on the merits of the motion pursuant to Federal Rule of Appellate

James C. Mahan
U.S. District Judge

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Procedure 4(a)(4)(B)(i). Accordingly, defendants argue that the court should vacate its order and

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deny plaintiff’s motion to reconsider on the merits. (Doc. # 152).

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Federal Rule of Appellate Procedure 4(a)(4)(B)(i) states that “[i]f a party files a notice of

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appeal after the court announces or enters a judgment—but before it disposes of any motion

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listed in Rule 4(a)(4)(A)—the notice becomes effective to appeal a judgment or order . . . when

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the order disposing of the last such remaining motion is entered.” Fed. R. App. P. 4(a)(4)(B)(i).

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This rule applies only to motions that were pending prior to the filing of a notice of

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appeal. Plaintiff’s motion to reopen the case was filed on July 21, 2014. (Doc. # 145). Plaintiff

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filed his notice of appeal on February 28, 2014. (Doc. # 125). Therefore, defendant’s argument

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is invalid.

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Plaintiff cannot continue to file motions with the district court after having appealed the

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court’s judgment. No further motions will be entertained in this closed case, and will instead be

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stricken without consideration.

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B. Motion for recusal

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Plaintiff requests that Judge Mahan recuse himself “for violation of due process and

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abuse of judicial discretion or because his impartiality might reasonably be questioned as

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demonstrated in many of his orders.” (Doc. # 155).

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Pursuant to 28 U.S.C. § 455, the presiding judge determines whether recusal is warranted.

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

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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.

James C. Mahan
U.S. District Judge

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Notably, recusal is not warranted considering that plaintiff has appealed this case.

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Further, plaintiff fails to identify any action of Judge Mahan indicating extrajudicial bias or

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prejudice. The court properly considered plaintiff’s motions and found his arguments to be

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without merit. Thus, recusal under 28 U.S.C. § 455(a) is not necessary in this case.

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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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set aside order, (doc. # 153), be, and the same hereby is, DENIED.
IT IS FURTHER ORDERED that plaintiff’s motion for recusal, (doc. # 155), be, and the
same hereby is, DENIED.
DATED October 9, 2014.
__________________________________________
UNITED STATES DISTRICT JUDGE

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James C. Mahan
U.S. District Judge

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