(PS) Boutros v. Hony ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE BOUTROS, No. 2:19-CV-1080-JAM-DMC 12 Plaintiff, 13 v. ORDER 14 CORY HONY, et al., 15 Defendants. 16 17 Plaintiff, who is proceeding pro se, brings this civil rights action. Pending before 18 the Court is Plaintiff’s motion, ECF No .66, to disqualify the undersigned from further 19 participation in this case. 20 Plaintiff’s motion is governed by 28 U.S.C. § 144, which provides as follows: 21 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 22 pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another 23 judge shall be assigned to hear such proceeding. 24 Berger v. United States, 255 U.S. 22 (1922), is the primary case interpreting § 144. See U.S. v. 25 Azhocar, 581 F.2d 735, 738 (1976). As a preliminary matter, the Court in Berger held that the 26 judge against whom a disqualification motion is brought may pass on its legal sufficiency. See 27 Berger, 255 U.S. at 233. To be sufficient, the motion must state facts which, if true, fairly support 28 the allegation of bias or prejudice which stems from an extrajudicial source and which may 1 | prevent a fair decision. See Azhocar, 581 F.2d at 740-41. Thus, the Supreme Court in Berger 2 | also held that adverse rulings alone cannot constitute the necessary showing of bias or prejudice. 3 | See Berger, 255 U.S. at 34. 4 Plaintiff's motion incorporates his objections to the Court’s August 18, 2021, 5 | findings and recommendations and contains to further argument. See ECF No. 66. In his 6 | objections, Plaintiff challenges various findings made by the undersigned in connection with 7 | Defendants’ motion to dismiss. Plaintiff's argument in support of disqualification is thus based 8 | entirely on the Court’s adverse ruling and not on any alleged bias or prejudice stemming from an 9 | extrajudicial source. 10 Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion to disqualify the 11 undersigned, ECF No. 66, is denied. 12 13 | Dated: September 29, 2021 Ssvcqo_ DENNIS M. COTA 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28