(PC) Stevens v. Smith ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LYRALISA LAVENA SMITH, Case No. 1:22-cv-00741-SAB (PC) 11 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL 12 v. (ECF No. 10) 13 S. SMITH, et al., 14 Defendants. 15 16 Plaintiff Lyralisa Lavena Smith is proceeding pro se and in forma pauperis in this civil 17 rights action filed pursuant to 42 U.S.C. § 1983. 18 Currently before the Court is Plaintiff’s motion to recuse the assigned Magistrate Judge, 19 filed August 25, 2022. 20 “Whenever a party to any proceeding in a district court makes and files a timely and 21 sufficient affidavit that the judge before whom the matter is pending has a personal bias or 22 prejudice either against him or in favor of any adverse party, such judge shall proceed no further 23 therein.” 28 U.S.C. § 144. “Any justice, judge, or magistrate judge of the United States shall 24 disqualify himself in any proceeding in which his impartiality might reasonably be 25 questioned.” 28 U.S.C. § 455(a). Under both recusal statutes, the substantive standard is 26 “whether a reasonable person with knowledge of all the facts would conclude that the judge's 27 impartiality might reasonably be questioned.” United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (quoting Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984) (citations omitted)). 1 | Judicial rulings alone almost never establish bias or partiality. Liteky v. United States, 510 U.S. 2 | 540, 555 (1994). 3 Here, Plaintiff takes issue with the fact that the assigned Magistrate Judge referred to her 4] as “he” twice in the conclusion portion of Court’s July 26, 2022 screening order. Although 5 | Plaintiff is correct that the Magistrate Judge inadvertently referenced her as “he” twice in the 6 | July 26, 2022 screening order, the typographical error does not warrant recusal. Indeed, Plaintiff 7 | overlooks the fact that throughout the Court’s July 26, 2022 screening order, Plaintiff is 8 | otherwise referenced as a “she” therein. (See ECF No. 9 at pp. 2, 3, 4, 6.) While the Court 9 | recognizes Plaintiffs frustration to the use of the incorrect pronoun, the typographical error was 10 | an inadvertent oversight and not an intentional misrepresentation of the facts. Further, the 11 | typographical error does not affect the substance of the Court’s screening order. Plaintiff failed 12 | to meet the heavy burden of showing bias or prejudice, and there is no basis for removing 13 | the Magistrate Judge. Accordingly, Plaintiff's motion for recusal is denied. 14 15 IT IS SO ORDERED. DAM Le 16 | Dated: _August 26, 2022 _ ef 4 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28