Scott v. Cunningham

Filing 238

ORDER denying 221 Motion for Recusal, signed by Chief Judge Marsha J. Pechman.(SC) Modified on 4/4/2012 -mailed copy of order to Richard Roy Scott(MD).

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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RICHARD ROY SCOTT,
No. C11-5509 BHS/KLS

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Plaintiff,
v.

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ORDER REGARDING PLAINTIFF’S
“MOTION FOR SELF RECUSE AND
STAY”

KELLY CUNNINGHAM,
Defendant.

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On February 27, 2012, Plaintiff filed a second “Motion for Self Recuse and Stay” in this
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matter and again requested that the Honorable Karen L. Strombom, United States Magistrate

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Judge, recuse herself from these proceedings. Dkt. No. 221. Plaintiff requests that the

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undersigned recuse herself on the grounds that “no reasonable person would issue or write” the

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orders she has entered in his matter, that she has misstated evidenced, ignored his declaration and

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exhibits, and knowingly lied. Id., pp. 2-3. Plaintiff asserts that Judge Strombom “knows the

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defendant is cheating and she supports same and has lied and she joins in doing so herself.” Id.,

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p. 9.
Pursuant to Local General Rule 8(c), Judge Strombom reviewed Plaintiff’s motion,

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declined to recuse herself voluntarily, and referred the matter to the undersigned. Dkt. No. 233.

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Plaintiff’s motion is therefore ripe for review by this Court.

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ORDER REGARDING RECUSAL MOTION - 1

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Having reviewed the record in the above-entitled matter, the Court finds no grounds
requiring Judge Strombom to recuse herself and DENIES the motion.

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DISCUSSION

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Pursuant to 28 U.S.C. § 455(a), a judge of the United States shall disqualify herself in any
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proceeding in which her impartiality “might reasonably be questioned.” A federal judge also

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shall disqualify herself in circumstances where she has a personal bias or prejudice concerning a

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party or personal knowledge of disputed evidentiary facts concerning the proceeding. 28 U.S.C.

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§ 455(b)(1).
Under both 28 U.S.C. §144 and 28 U.S.C. § 455, recusal of a federal judge is appropriate
if “a reasonable person with knowledge of all the facts would conclude that the judge’s

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impartiality might reasonably be questioned.” Yagman v. Republic Insurance, 987 F.2d 622, 626
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(9th Cir.1993). This is an objective inquiry concerned with whether there is the appearance of

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bias, not whether there is bias in fact. Preston v. United States, 923 F.2d 731, 734 (9th

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Cir.1992); United States v. Conforte, 624 F.2d 869, 881 (9th Cir.1980). In Liteky v. United

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States, 510 U.S. 540 (1994), the United States Supreme Court further explained the narrow basis

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for recusal:

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[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality
motion. . . . [O]pinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a deep
seated favoritism or antagonism that would make fair judgment impossible. Thus,
judicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge.

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Id. at 555.

ORDER REGARDING RECUSAL MOTION - 2

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Reviewing Plaintiff’s motion and accompanying documentation, it is impossible to

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escape the conclusion that Plaintiff does not like Judge Strombom’s rulings and believes that

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those rulings have unfairly impacted his ability to pursue his claims in this and other cases. He is

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entitled to his beliefs and he is entitled to ask the Ninth Circuit Court of Appeals to overturn

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Judge Strombom’s rulings on any legitimate grounds he can articulate; what he is not entitled to
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is having Judge Strombom removed from the case because he disagrees with those rulings.
A judge’s conduct in the context of pending judicial proceedings does not constitute the
requisite bias under 28 U.S.C. § 144 or § 455 if it is prompted solely by information that the

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judge received in the context of the performance of his duties. Bias is almost never established

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simply because the judge issued an adverse ruling.

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In order to overcome this presumption, Plaintiffs would have to show that facts outside

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the record influenced decisions or that the presiding judicial officer’s rulings were so irrational

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that they must be the result of prejudice. Plaintiffs do not allege any facts outside the record that

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improperly influenced the decisions in this matter. Plaintiffs have identified no error of law, and

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a review of Judge Strombom’s rulings in this matter reveals no orders that were so outlandish or

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irrational as to give rise to an inference of bias.

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Plaintiff may disagree with Judge Strombom’s rulings but that is a basis for appeal, not

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disqualification. As Plaintiff has cited no extrajudicial source of bias, the Court finds that Judge

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Strombom’s impartiality cannot reasonably be questioned. There being no evidence of bias or

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prejudice, Plaintiff’s request for recusal is DENIED.

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ORDER REGARDING RECUSAL MOTION - 3

CONCLUSION

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There is no reasonable basis for a voluntary recusal in this instance.

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Accordingly it is hereby ORDERED that the undersigned DENIES Plaintiff’s motion

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for Judge Strombom to recuse herself voluntarily.

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The Clerk of the Court shall send a copy of this Order to Plaintiff and to any parties who
have appeared in this action.

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DATED this 4th

day of April, 2012.

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A

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Marsha J. Pechman
Chief United States District Judge

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ORDER REGARDING RECUSAL MOTION - 4