(PC)Foster v. Burnes ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICKY TYRONE FOSTER, Case No: 1:22-cv-00934-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL 13 v. (Doc. No. 13) 14 J. BURNES and T. CAMPBELL, 15 Defendants. 16 17 Pending before the Court is Plaintiff’s motion titled “Mandatory Disqualification or 18 Recusal and Affidavit in Support Thereof (Magaistrate) [sic] Judge: Helena M. Barch-kuchta[,]” 19 filed on July 14, 2023. (Doc. No. 13, “Motion”). Plaintiff brings the Motion under 28 U.S.C. 20 §§ 144 and 455(b)(1). Liberally construed, Plaintiff seeks a recusal of the undersigned. For the 21 reasons set forth below, Plaintiff’s motion is denied. 22 Recusal of Magistrate Judge 23 Plaintiff’s Motion appears to request that the undersigned recuse herself due to his belief 24 that the undersigned is biased against him. (Doc. No. 13 at 1). This belief is based on the 25 undersigned making findings and issuing rulings against him in this matter and another active 26 prisoner civil rights matter, Foster v. Kaweah Delta Medical Center et al., E.D. Cal. Case No. 27 1:21-cv-01044. (Doc. No. 13 at 1-3). Plaintiff brings the Motion both under 28 U.S.C. §§ 144 28 and 455(b)(1). 1 Title 28 U.S.C. § 455 provides that a “magistrate judge shall disqualify [herself] in any 2 proceeding in which [her] impartiality might reasonably be questioned” or “[w]here [she] has a 3 personal bias or prejudice concerning a party.” 28 U.S.C. §§ 455(a). “The standard for judging 4 the appearance of partiality requiring recusal under 28 U.S.C. § 455(a) is an objective one and 5 involves ascertaining ‘whether a reasonable person with knowledge of all the facts would 6 conclude that the judge’s impartiality might reasonably be questioned.’” United States v. 7 Holland, 519 F.3d 909, 913 (9th Cir. 2008); Preston v. United States, 923 F.2d 731, 734 (9th Cir. 8 1991) (citations omitted). The “reasonable person” is not someone who is “hypersensitive or 9 unduly suspicious,” but rather is a “well-informed, thoughtful observer.” Holland, at 913. “The 10 standard “‘must not be so broadly construed that it becomes, in effect, presumptive, so that 11 recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.’” 12 Holland, 519 F.3d at 913. The court’s analysis is “fact-driven” requiring “an independent 13 examination of the unique facts and circumstances of the particular claim at issue.” Id. at 914 14 (citation omitted). Thus, “except in the “rarest of circumstances,” recusal under § 455(a) is 15 limited to “extra judicial source” factors requiring the reason for recusal to be “something other 16 than rulings, opinions formed or statements made by the judge during the course of trial.” Id. 17 (citing Liteky v. United States, 510 U.S. 540, 554–56 (1994)). 18 Title 28 U.S.C. § 144 provides that: 19 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the 20 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 21 therein, but another judge shall be assigned to hear such proceeding. 22 The affidavit shall state the facts and the reasons for the belief that 23 bias or prejudice exists . . . 24 Title 28 U.S.C § 144. Although the statute provides for the assignment of a case to another judge 25 to hear the disqualification proceeding once a timely and sufficient affidavit alleging bias or 26 prejudice is proffered, it remains within discretion of the trial court to determine, at the outset, the 27 legal sufficiency of the affidavit supporting the motion for disqualification of judge. Holmes v. 28 NBC/GE, 925 F. Supp. 198, 201 (S.D.N.Y. 1996); see also Harris v. Geico Gen. Ins. Co., 961 F. 1 Supp. 2d 1223, 1227 (S.D. Fla. 2013), aff'd, 619 F. App’x 896 (11th Cir. 2015). Accordingly, the 2 undersigned reviews Plaintiff’s affidavit for sufficiency to determine whether another judge 3 should hear the motion. 4 The Ninth Circuit applies the same test for bias under both 28 U.S.C. §§ 144 and 455. See 5 United States v. Olander, 584 F.2d 876, 882 (9th Cir. 1978), vacated on other grounds, 443 U.S. 6 914, (1979). 28 U.S.C. § 144 contemplates an objective standard requiring recusal whenever a 7 reasonable person might question the judge’s impartiality. Matter of Beverly Hills Bancorp, 752 8 F.2d 1334, 1341 (9th Cir. 1984). Bias for purposes of the statute must be from an extrajudicial 9 source, and not solely from information gained in the course of the proceedings. United States v. 10 Grinnell Corp., 384 U.S. 563, 583 (1966); United States v. Winston, 613 F.2d 221, 223 (9th Cir. 11 1980). Unfavorable rulings alone are legally insufficient to require recusal, Botts v. United 12 States, 413 F.2d 41, 44 (9th Cir. 1969), even when the number of such unfavorable rulings is 13 extraordinarily high on a statistical basis. See In re International Business Machines Corp., 618 14 F.2d 923, 929–30 (2d Cir. 1980). 15 Applying these principles to the instant matter, the Court finds Plaintiff’s incorporated 16 affidavit insufficient to warrant assigning the motion to another judge. Notably, the only 17 evidence of bias or prejudice Plaintiff cites are rulings the undersigned made in this case and 18 another matter. (See Doc. No. 13 at 1-3). Plaintiff fails to identify any extra judicial source 19 factors to warrant a recusal, as required under both statutes. See Grinnell Corp., 384 U.S. at 583; 20 Winston, 613 F.2d at 223. It is well-settled that unfavorable rulings alone are insufficient to 21 establish prejudice or bias. See Botts, 413 F.2d at 44. Nor does Plaintiff establish why this case 22 presents the “rarest of circumstances” where judicial rulings alone should provide a basis for 23 recusal under 28 U.S.C. § 455. See Holland, 519 F.3d at 914. Further, this case remains subject 24 to final adjudication by a United States District Court judge. 25 //// 26 //// 27 //// 28 //// 1 For the reasons stated above, the undersigned declines to recuse herself from this case. 2 Accordingly, it is ORDERED: 3 Plaintiff's motion for the undersigned to recuse herself (Doc. No. 13) is DENIED. 4 > | Dated: _ July 27. 2023 Mihaw. □□ fareh Hack 6 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28