Tracy et al v. CEO, Successor, et al.,

Filing 229

ORDERED that P's renewed motions for recusal (Doc. ## 195 , 200 ) are DENIED. Signed by Judge Larry R. Hicks on 1/28/2013. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LINWOOD EDWARD TRACY, JR.; et al.,

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PlaintiffS,

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v.

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CEO, SUCCESSOR FOR DEUTSCHE
NATIONAL TRUST COMPANY; et al.,

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Defendants.
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3:11-cv-0436-LRH-VPC
ORDER

Before the court are plaintiff Linwood Edward Tracy, Jr.’s (“Tracy”) renewed motions for

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recusal of the Honorable Larry R. Hicks (“Judge Hicks”) under 28 U.S.C. § 455(a).

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Doc. ##195, 200.1

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I.

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Facts and Background
At its core, this is a wrongful foreclosure and wrongful taxation action. Plaintiff William

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Gerald Fillion (“Fillion”) owned real property in California which was subject to state, county, and

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city tax assessments. The tax assessments went unpaid and eventually the property was foreclosed

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upon.

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On June 21, 2011, plaintiffs filed a civil rights complaint against defendants for violation of

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their First and Fourth Amendment rights. See Doc. #1. In particular, plaintiffs challenge the tax

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assessments and foreclosure claiming that the property belonged to a non-profit organization.

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Refers to the court’s docket number.

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Thereafter, Tracy filed the present motion for recusal. Doc. #119.

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II.

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Discussion
Recusal of a district court judge is governed by 28 U.S.C. § 455. The standard for recusal

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under § 455 is “whether a reasonable person with knowledge of all the facts would conclude that

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the judge’s impartiality might reasonably be questioned.” United States v. Studley, 783 F.2d 934,

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939 (9th Cir. 1986). Further, the alleged prejudice must result from an extrajudicial source; a

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judge’s prior adverse ruling is not sufficient cause for recusal. Id.

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The court has reviewed Tracy’s motion for recusal and finds that it is without merit. First,
Tracy has failed to comply with the requirements of a motion for recusal pursuant to 28 U.S.C.

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§ 144. Under section 144, a party seeking recusal must set forth, in an affidavit, facts and reasons

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for the belief that bias or prejudice of the district judge exists. See 28 U.S.C. § 144. Here, Tracy did

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not file any affidavit in support of his motion for recusal.

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Second, Tracy’s sole reason for recusal of Judge Hicks is that Judge Hicks issued several

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orders in this action which were adverse to Tracy. The court finds this accusation without merit. It

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is axiomatic that a judge overseeing an action will issue orders during the course of litigation that

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may be adverse to one of the parties. This alone, is not a basis for recusal of a judge.

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Therefore, based on the record before the court and the pleadings and documents on file in

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this matter, the court finds that Tracy has failed to establish any extrajudicial bias or prejudice that

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would lead a reasonable person to conclude that the impartiality of this court might reasonably be

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questioned. See 28 U.S.C. § 455(a). In the absence of a legitimate reason to recuse, a judge should

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participate in all cases assigned. United States v. Holland, 510 F.3d 909, 912 (9th Cir. 2008).

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Accordingly, the court shall deny Tracy’s renewed motions for recusal.

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IT IS THEREFORE ORDERED that plaintiff’s renewed motions for recusal (Doc. ##195,
200) are DENIED.

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IT IS SO ORDERED.

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DATED this 28th day of January, 2013.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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