(PC) Wilkins v. Barber ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEENAN WILKINS, No. 2:19-cv-1338 WBS KJN P 12 Plaintiff, 13 v. ORDER 14 DR. CHRISTINE BARBER, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se, with a civil rights action. The matter was 18 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 19 302. On May 15, 2020, plaintiff moved to recuse the undersigned magistrate judge pursuant to 28 20 U.S.C. § 144. (ECF No. 80). As discussed below, plaintiff’s motion is denied. 21 I. Legal Standards 22 Federal law provides that a party may seek recusal of a judge based on bias or prejudice. 23 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the 24 matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further 25 therein, but another judge shall be assigned to hear such proceeding. 26 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 27 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 28 time. A party may file only one such affidavit in any case. It shall be 1 accompanied by a certificate of counsel of record stating that it is made in good faith. 2 3 28 U.S.C. § 144. 4 The standard for recusal under 28 U.S.C. § 144 is “‘whether a reasonable person with 5 knowledge of all the facts would conclude that the judge’s impartiality might reasonably be 6 questioned.’” Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (quoting United States v. 7 Nelson, 718 F.2d 315, 321 (9th Cir. 1983)). To provide adequate grounds for recusal, the 8 prejudice must result from an extrajudicial source since a judge’s previous adverse ruling alone is 9 not sufficient for recusal. See id. 10 Section 144 expressly conditions relief upon the filing of a timely and legally sufficient 11 affidavit. A judge who finds the affidavit legally sufficient must proceed no further under Section 12 144 and must assign a different judge to hear the matter. See 28 U.S.C. § 144; United States v. 13 Sibla, 624 F.2d 864, 867 (9th Cir. 1980). Nevertheless, where the affidavit is not legally 14 sufficient, the judge at whom the motion is directed can determine the matter. See United States 15 v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999) (citing Toth v. Trans World Airlines, Inc., 862 F.2d 16 1381, 1388 (9th Cir. 1988) (holding that only after determining the legal sufficiency of a Section 17 144 affidavit is a judge obligated to reassign decision on merits to another judge)). If the affidavit 18 is legally insufficient, then recusal can be denied. See United States v. $292,888.04 in U.S. 19 Currency, 54 F.3d 564, 566 (9th Cir. 1995). 20 II. Discussion 21 Plaintiff’s motion for recusal in this case is substantively insufficient under Section 144 22 because it fails to allege facts that would support the contention that the undersigned has 23 exhibited bias or prejudice directed towards plaintiff from an extrajudicial source. See Sibla 624 24 F.2d at 868 (“An affidavit filed pursuant to [Section 144] is not legally sufficient unless it 25 specifically alleges facts that fairly support the contention that the judge exhibits bias or prejudice 26 directed toward a party that stems from an extrajudicial source.”). The motion alleges bias and 27 “egregious hostile mistreatment” by the undersigned based on the court’s adverse rulings against 28 plaintiff as well as how the court has handled plaintiff’s case. (ECF No. 80 at 2.) MASS 2S SUING IN MUI OR PO Ve PY VM VI 1 The issues raised by plaintiff in his motion for recusal are not proper grounds to disqualify 2 | ajudge for bias and prejudice. As the United States Supreme Court has noted, “judicial rulings 3 | alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v. United 4 | States, 510 U.S. 540, 555 (1994). Instead, the judicial rulings are a basis for appeal, not recusal. 5 || See id. (“In and of themselves . . . [judicial rulings] cannot possibly show reliance upon an 6 | extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or 7 | antagonism required ... when no extrajudicial source is involved. Almost invariably, they are 8 | proper grounds for appeal, not for recusal.”); Leslie v. Grupo ICA, 198 F.3d 1152, 1160 (9th Cir. 9 | 1999) (“Leslie’s allegations stem entirely from the district judge’s adverse rulings. That is not an 10 | adequate basis for recusal.”) (citations omitted). 11 Accordingly, IT IS HEREBY ORDERED that plaintiff's motion to recuse the undersigned 12 | (ECF No. 80) is denied. 13 | Dated: May 19, 2020 i A Abar 15 KENDALL J. NE /wilk1338.recuse UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28