(PC) McCoy v. Kelso ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH RAYMOND MCCOY, ) Case No.: 1:12-cv-000983-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION 13 v. ) FOR DISQUALIFICATION 14 STRONACH, et al., ) [ECF No. 181] ) 15 Defendants. ) ) 16 ) 17 Plaintiff Joseph Raymond McCoy is appearing pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 On October 17, 2019, Plaintiff filed a motion to disqualify the undersigned pursuant to 28 20 U.S.C. § 455(a). Defendants filed an opposition on November 7, 2019. The Court deems the matter 21 suitable for review without a reply from Plaintiff. Local Rule 230(l). 22 I. 23 DISCUSSION 24 Under 28 U.S.C. § 455, a judge “shall disqualify himself in any proceeding in which his 25 impartiality might reasonably be questioned,” including under circumstances where “he has a personal 26 bias or prejudice concerning a party.” See 28 U.S.C. § 455(a), (b)(1). A motion under section 455 is 27 addressed to, and must be decided by, the very judge whose impartiality is being questioned. Bernard 28 v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). “Section 455 clearly contemplates that decisions with 1 respect to disqualification should be made by the judge sitting in the case, and not by another judge.” 2 Id. (quoting United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir. 1985)). “[S]ection 455 includ 3 no provision for referral of the question of recusal to another judge; if the judge sitting on the case is 4 || aware of grounds for recusal under section 455, that judge has a duty to recuse himself or herself.” 5 || United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980). On the other hand, “in the absence of a 6 || legitimate reason to recuse himself, a judge should participate in cases assigned.” United States v. 7 || Holland, 519 F.3d 909, 912 (9th Cir. 2008). 8 On September 13, 2019, Plaintiff filed an application for an order for enforcement of 9 || administrative agency judgment and request for judicial notice in the United States Court of Appeals 10 || for the Ninth Circuit, case number 15-17148. Plaintiff contends the filing divested this Court of 11 || jurisdiction and therefore the undersigned has no authority to proceed with the case. First, □□□□□□□□□□□ 12 || September 13, 2019, motion was denied by the Ninth Circuit on November 4, 2019. CECF No. 194.) 13 || Second, Plaintiff has failed to demonstrate that the undersigned exhibits bias or prejudice towards hir 14 || Plaintiff's allegations of bias or prejudice stem from the Court’s procedures and rulings. However, 15 || “[jJudicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky v. 16 || United States, 510 U.S. 540, 555 (1994). Accordingly, Plaintiff's motion for disqualification must be 17 || denied. 18 Il. 19 ORDER 20 Based on the foregoing, it is HEREBY ORDERED that Plaintiff's motion for disqualification 21 || of the undersigned (ECF No. 181) is DENIED. 22 23 || IT IS SO ORDERED. A (ee 24 || Dated: _ November 8, 2019 OF 25 UNITED STATES MAGISTRATE JUDGE 26 27 28