Wiesner v. Pro et al

Filing 16

ORDER OF RECUSAL. This action is referred to Chief Judge Robert C. Jones for reassignment. Signed by Magistrate Judge Peggy A. Leen on 6/3/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DEANN WIESNER,

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Plaintiff,
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vs.
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PHILIP PRO, et al.,
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Defendants. )
__________________________________________)

Case No. 2:13-cv-00315-JCM-PAL
ORDER

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This matter is before the court on the court’s review of the docket in this case. Plaintiff DeAnn

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Wiesner filed her Complaint on February 26, 2013, naming the undersigned and other judges in this

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District as Defendants. The sole allegation in her Complaint was “Under 1983 Civil

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Rights–Defendants knew victims of domestic violence had their evidence destroyed by State of Nevada

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VAWA Fund Administrators.” Complaint at 1. Plaintiff did not submit an application to proceed in

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forma pauperis or pay the filing fee. The court, therefore, entered an Order (Dkt. #2) requiring Plaintiff

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to submit an application to proceed in forma pauperis or pay the required filing fee. Plaintiff now seeks

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damages for the undersigned’s Order (Dkt. #2) because of an unspecificied conflict of interest. See

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Motion for Sanctions (Dkt. #3).

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The Code of Conduct for United States Judges requires a judge to disqualify himself or herself

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in limited circumstances, including cases where a judge’s impartiality may be reasonably questioned.

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See Code of Conduct for United States Judges, Canon 3(C) (Mar. 2009 ed.) (codified at 28 U.S.C.

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§ 455). In the absence of a legitimate reason to recuse, a judge has the duty to sit in all cases coming

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before him or her. See United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008). The standard for

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recusal under section 455 is “whether a reasonable person with knowledge of all the facts would

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conclude that the judge’s impartiality might be reasonably questioned.” Pesnell v. Arsenault, 543 F.3d

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1038, 1044 (9th Cir. 2008) (citing United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)). A

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judge is not required to recuse himself or herself from a case because a person has filed a civil

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complaint against him or her. See United States v. Sutcliffe, 505 F.3d 944, 958 (9th Cir. 2007); Ronwin

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v. State Bar of Arizona, 686 F.2d 692 (9th Cir. 1981) (stating “a judge is not disqualified merely

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because a litigant sues or threatens to sue him . . . . [s]uch an easy method for obtaining disqualification

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should not be encouraged or allowed”), cert. denied, 461 U.S. 938 (1983), rev’d on other grounds by

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Hoover v. Ronwin, 466 U.S. 558 (1984).

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Plaintiff’s naming the undersigned as a Defendant and the allegations in Plaintiff’s Complaint

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and Amended Complaint did not require recusal under the Code of Conduct for United States Judges,

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or applicable Ninth Circuit case law, and the court therefore entered the Order (Dkt. #2) about which

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Plaintiff now seeks sanctions. However, since that order was entered the court has learned additional

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information which might casue a reasonable person with knowledge of the facts to cnclude the

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undersigned’s impartiality might reasonably be questioned. The court therefore finds recusal pursuant

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to Canon 3(C)(1) of the Code of Conduct for United States Judges is warranted..

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Having reviewed and considered the matter,

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IT IS ORDERED:

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1.

The undersigned United States Magistrate Judge recuses herself from this case.

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2.

This matter is referred to Chief Judge Robert C. Jones for random reassignment to

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another Magistrate Judge.

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Dated this 3rd day of June, 2013.

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_________________________________________
PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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