Barth v. Mabry Carlton Ranch Inc. et al

Filing 12

ORDER: Adopting Findings and Recommendation 8 . The Court has considered the issues de novo and agrees with the reasoning of JudgeAcosta. The Court ADOPTS Judge Acostas Findings and Recommendation (ECF 8 ), as supplemented herein. The Court finds that venue is improper in this District. The Court DENIES Plaintiffs Motion to Recuse and Reject Magistrate Judge Acosta (ECF 10 ). The Court dismisses this case without prejudice. Signed on 10/8/20 by Judge Michael H. Simon. (Mailed to Pro Se party on 10/9/20.) (sb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOHN S. BARTH,
Plaintiff,

Case No. 3:20-cv-1164-AC
ORDER

v.
MABRY CARLTON RANCH INC., et. al,
Defendants.

Michael H. Simon, District Judge.
United States Magistrate Judge John V. Acosta issued Findings and Recommendation in
this case on September 24, 2020. ECF 8. Judge Acosta recommended that the Court dismiss this
case without prejudice for improper venue.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate judge’s findings and recommendations,
“the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).

PAGE 1 – ORDER

For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report to which no objections are filed.”); United
States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court
must review de novo magistrate judge’s findings and recommendations if objection is made, “but
not otherwise”). Although in the absence of objections no review is required, the Magistrates Act
“does not preclude further review by the district judge[] sua sponte . . . under a de novo or any
other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ.
P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate
judge’s recommendations for “clear error on the face of the record.”
Plaintiff timely filed an objection. ECF 10. Plaintiff also moved to recuse Judge Acosta,
arguing that he is biased and engaged in actions of a “corrupt judge to exonerate his fellow
Republican racketeers in Florida.” Plaintiff’s motion to recuse is based solely on Judge Acosta’s
rulings denying Plaintiff’s motion to seal the record in this case and denying Plaintiff’s motion
for discovery assistance, in which he requested that the Court obtain discovery on behalf of
Plaintiff from the Federal Bureau of Investigation, Internal Revenue Service, Department of
Homeland Security, and Department of Justice.
Regarding Plaintiff’s motion to recuse Judge Acosta, two statutes address recusal or
disqualification of a federal judge. They are 28 U.S.C. § 144 and 28 U.S.C. § 455. Section 144
provides:
Whenever a party to any proceeding in a district court makes and
files a timely and sufficient affidavit that the judge before whom
the matter is pending has a personal bias or prejudice either against
him or in favor of any adverse party, such judge shall proceed no
PAGE 2 – ORDER

further therein, but another judge shall be assigned to hear such
proceeding.
The affidavit shall state the facts and the reasons for the belief that
bias or prejudice exists, and shall be filed not less than ten days
before the beginning of the term at which the proceeding is to be
heard, or good cause shall be shown for failure to file it within
such time. A party may file only one such affidavit in any case. It
shall be accompanied by a certificate of counsel of record stating
that it is made in good faith.
28 U.S.C. § 144. Section 455 provides, in relevant part:
Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality
might reasonably be questioned.
28 U.S.C. § 455(a).
The Ninth Circuit has interpreted these statutes and explained that any alleged personal
bias or prejudice of a judge must result from an extrajudicial source, not from any prior adverse
ruling by that judge. According to the Ninth Circuit:
The standard for recusal under 28 U.S.C. §§ 144, 455 is “whether a
reasonable person with knowledge of all the facts would conclude
that the judge’s impartiality might reasonably be questioned.” The
alleged prejudice must result from an extrajudicial source; a
judge’s prior adverse ruling is not sufficient cause for recusal.
United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (citations omitted) (emphasis added);
Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (“To provide grounds for recusal,
prejudice must result from an extrajudicial source. United States v. Azhocar, 581 F.2d 735, 739
(9th Cir. 1978). A judge’s previous adverse ruling alone is not sufficient bias.”); see also Stone v.
Baum, 409 F. Supp. 2d 1164, 1175 n.5 (D. Ariz. 2005) (citing Studley and adding that “[a]
motion for recusal based entirely on prior adverse rulings is insufficient and will be denied”).
Plaintiff’s motion to recuse is based entirely on Judge Acosta’s adverse rulings. Thus, the
motion is denied.
PAGE 3 – ORDER

Regarding Plaintiff’s objections to the Findings and Recommendation, Plaintiff argues
that he has sufficiently shown that venue is proper in the District of Oregon. The Court disagrees
with Plaintiff and concurs with Judge Acosta’s analysis, with a minor factual modification. Judge
Acosta states that Plaintiff alleges that Oregon residents comprise 21 percent of Florida’s nonresident property owners. As noted by Plaintiff, that is not what Plaintiff alleges. In a somewhat
confusing manner, Plaintiff alleges that Oregon residents comprise 1.43% of Florida’s 21% of
non-resident property owners. Plaintiff’s precise allegation is: “The Oregon District comprises
1.43% of the US population not residing in Florida, and of the 21% of Florida property owners
who are non-residents.” This means that Oregon residents would only comprise a very small
fraction of Florida property owners.
Plaintiff, however, is only calculating this based on Oregon’s overall percentage of the
population in the United States, not on any facts showing that Florida’s non-resident property
ownership follows the population division of the United States. It may be that people on the East
Coast buy property in Florida as a second home or investment property in larger percentages
than do people on the West Coast who would have to travel farther, thus skewing the percentages
of non-resident owners from the overall United States population model. Regardless, this is not a
large enough percentage to establish venue under the circumstances of this case.
Plaintiff also objects to Judge Acosta’s finding that there is an adequate alternative venue
in the Middle District of Florida. Plaintiff argues that he has alleged the bias and corruption of
the Republican Party in Florida that extends to judges and that the Middle District of Florida is
compromised and, thus, not a reasonable alternative venue. Plaintiff states: “this case involves
state and federal judicial corruption in the Middle District of Florida, of judges associated with
the political party of the defendants which received funds from the defendant officials, including

PAGE 4 – ORDER

a judge and her family who received $53 million of those funds, it cannot reasonably be
prosecuted in that district.” The Middle District of Florida, however, has 14 active United States
district judges and 16 senior judges. These judges have been appointed by Presidents Jimmy
Carter, Ronald Reagan, Bill Clinton, George H.W. Bush, George W. Bush, Barack Obama, and
Donald J. Trump. Plaintiff does not specifically argue, let alone provide any factual support, for
the contention that 30 judges who have been appointed by seven different U.S. Presidents from
both political parties and confirmed by the U.S. Senate are engaged in some illegal conspiracy
with the Republican Party in Florida. Plaintiff’s argument that the Middle District of Florida is
not a viable venue is rejected. Plaintiff’s remaining objections are similarly without merit.
The Court has considered the issues de novo and agrees with the reasoning of Judge
Acosta. The Court ADOPTS Judge Acosta’s Findings and Recommendation (ECF 8), as
supplemented herein. The Court finds that venue is improper in this District. The Court DENIES
Plaintiff’s Motion to Recuse and Reject Magistrate Judge Acosta (ECF 10). The Court dismisses
this case without prejudice.
IT IS SO ORDERED.
DATED this 8th day of October, 2020.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 5 – ORDER