Tagle v. Nouheim et al

Filing 39

ORDER Denying Plaintiff's 38 Motion for Recusal of Magistrate Judge. Signed by Magistrate Judge Nancy J. Koppe on 5/23/2017. (Copies have been distributed pursuant to the NEF - SLD)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 10 VICTOR TAGLE, 11 Plaintiff(s), 12 vs. 13 JON NOUHEIM, et al., 14 Defendant(s). 15 ) ) ) ) ) ) ) ) ) ) Case No. 2:16-cv-00709-GMN-NJK ORDER DENYING MOTION TO RECUSE (Docket No. 38) 16 Pending before the Court is Plaintiff’s motion to change magistrate judge. Docket No. 38. The 17 Court construes the motion as seeking recusal pursuant to 28 U.S.C. § 144 and 28 U.S.C. § 455. See 18 Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013) (courts construe pro se filings liberally). The 19 substantive standard for recusal under both Sections is the same: “whether a reasonable person with 20 knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” 21 United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (quoting United States v. Studley, 783 22 F.2d 934, 939 (9th Cir. 1986)). Ordinarily, any alleged bias must stem from an “extrajudicial source.” 23 Liteky v. United States, 510 U.S. 540, 554-56 (1994). “[O]pinions formed by the judge on the basis of 24 facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, 25 do not constitute a basis for a bias or partiality motion unless they display a deep-seated favortism or 26 antagonism that would make fair judgment impossible.” Id. at 555. 27 Without explanation or elaboration, Plaintiff asserts that the undersigned has exhibited bias based 28 on Plaintiff’s ethnic background and indigence. Docket No. 38 at 1. The undersigned has no personal 1 feelings of bias toward Plaintiff on any basis, let alone his ethnic background and/or indigence, and 2 Plaintiff has not pointed to any basis on which a reasonable observer could question whether such 3 impartiality exists. 4 Plaintiff also appears to argue that the undersigned is biased because two of the defendants are 5 “magistrates.” Id. It appears from Plaintiff’s complaint that two of the defendants are state judicial 6 officers. See Docket No. 1-1 at 5, 6. The undersigned does not know either person, has no feelings of 7 partiality related to either, and Plaintiff has not pointed to any basis on which a reasonable observer 8 could question the undersigned’s impartiality. 9 Lastly, Plaintiff argues that the attorney representing Defendants is a family member of someone 10 affiliated with the Court. Docket No. 38 at 1. Plaintiff does not identify that attorney (or family 11 member). No Defendant or attorney has appeared in this case, and the Court is not aware as to who will 12 represent Defendants in this case should it proceed. 13 The real crux of Plaintiff’s motion appears to be that he is unhappy with the report and 14 recommendation issued by the undersigned that this case should be dismissed. See id.1 Unhappiness 15 with a judge’s rulings is not ground for recusal. See United States v. Studley, 783 F.2d 934, 939 (9th 16 Cir. 1986) (“a judge’s prior adverse ruling is not sufficient cause for recusal”). To the extent Plaintiff 17 disagrees with that report and recommendation, his remedy is to object to it (as he has already done). 18 Docket No. 10. 19 For these reasons, Plaintiff’s motion for the undersigned to recuse is DENIED. 20 IT IS SO ORDERED. 21 DATED: May 23, 2017 22 ______________________________________ NANCY J. KOPPE United States Magistrate Judge 23 24 25 1 26 27 28 The motion references the undersigned dismissing multiple of Plaintiff’s cases without reason. Id. The Court will take this opportunity to clarify the record. This is the only case brought by Plaintiff assigned to the undersigned. As a magistrate judge, the undersigned has not dismissed this case, but rather recommended that the assigned district judge dismiss the case. That report and recommendation provided explicit reasoning and discussion of applicable legal authority. See Docket No. 8 at 2-4. 2

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