(PC) Magee v. Arkowitz ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RUCHELL CINQUE MAGEE, No. 2:19-cv-0172 KJN P 12 Plaintiff, 13 v. ORDER 14 STEVEN ARKOWITZ, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court are plaintiff’s motions to disqualify the 19 undersigned. (ECF Nos. 18, 20.) 20 Motions to disqualify fall under two statutory provisions, 28 U.S.C. § 144 and 28 U.S.C. 21 § 455. Section 144 provides for recusal where a party files a timely and sufficient affidavit 22 averring that the judge before whom the matter is pending has a personal bias or prejudice either 23 against the party or in favor of an adverse party and setting forth the facts and reasons for such 24 belief. See 28 U.S.C. § 144. Similarly, section 455 requires a judge to disqualify himself “in any 25 proceeding in which his impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), 26 including where the judge “has a personal bias or prejudice concerning a party.” Id.,§ 455(b)(1). 27 //// 28 //// 1 A judge finding a section 144 motion timely and the affidavits legally sufficient must 2 | proceed no further and another judge must be assigned to hear the matter. United States v. Sibla, 3 | 624 F.2d 864, 867 (9th Cir. 1980). Where the affidavit is not legally sufficient, however, the 4 | judge at whom the motion is directed may determine the matter. See id. at 868 (holding judge 5 | challenged under section 144 properly heard and denied motion where affidavit not legally 6 | sufficient). 7 The substantive test for personal bias or prejudice is identical under sections 144 and 455. 8 | See Sibla, 624 F.2d at 868. Specifically, under both statutes recusal is appropriate where “a 9 | reasonable person with knowledge of all the facts would conclude that the judge’s impartiality 10 | might reasonably be questioned.” Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993) 11 (citation omitted). Consequently, an affidavit filed under section 144 will raise a question 12 | concerning recusal under sections 455(a) and (b)(1) as well. Sibla, 624 F.2d at 867. 13 After reviewing plaintiff's motions to disqualify, the undersigned finds that plaintiffs 14 | conclusory allegations fail to provide any fact or reason on which a reasonable person would 15 | conclude that my impartiality might reasonably be questioned, or that otherwise indicate bias or 16 | prejudice. 17 Accordingly, IT IS HEREBY ORDERED that plaintiffs motions to disqualify (ECF Nos. 18 18, 20) are denied. 19 | Dated: November 21, 2019 Aectl Aharon 2] KENDALL J. NE UNITED STATES MAGISTRATE JUDGE 22 Mag172.ord 23 24 25 26 27 28