(PC) O'Brien v. Gibson ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 KORY T. O’BRIEN, 1:21-cv-01574-ADA-GSA-PC 11 Plaintiff, ORDER DENYING MOTION FOR RECUSAL OF MAGISTRATE JUDGE 12 vs. (ECF No. 22.) 13 GIBSON, et al., 14 Defendants. 15 16 I. BACKGROUND 17 Kory T. O’Brien (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 19 commencing this action on October 25, 2021. (ECF No. 1.) 20 On July 21, 2023, Plaintiff filed a motion for the recusal of Magistrate Judge Gary Austin 21 under 28 U.S.C. § 144 and 28 U.S.C. § 455. (ECF No. 22.) 22 II. DISQUALIFICATION OF MAGISTRATE JUDGE - 28 U.S.C. § 455 AND 23 28 U.S.C. § 144 24 A. Legal Standards 25 The procedural requirements for a motion to disqualify under 28 U.S.C. § 455 are 26 different from those under 28 U.S.C. § 144. Brew v. Fehderau, No. 1:17-cv-00681-AWI-EPG- 27 PC, 2017 U.S. Dist. LEXIS 168135, at *2-3 (E.D. Cal. Oct. 11, 2017) (citing United States v. 28 Sibla, 624 F.2d 864, 867 (9th Cir. 1980)). Under 28 U.S.C. § 455, a judge “shall disqualify 1 himself in any proceeding in which his impartiality might reasonably be questioned,” including 2 under circumstances where “he has a personal bias or prejudice concerning a party.” Id. (quoting 3 see 28 U.S.C. § 455(a), (b)(1)). A motion under section 455 is addressed to, and must be decided 4 by, the very judge whose impartiality is being questioned. Id. (citing Bernard v. Coyne, 31 F.3d 5 842, 843 (9th Cir. 1994)). “Section 455 clearly contemplates that decisions with respect to 6 disqualification should be made by the judge sitting in the case, and not by another 7 judge.” Id. (quoting Bernard, 31F. 3d at 843 (quoting United States v. Balistrieri, 779 F.2d 1191, 8 1202 (7th Cir. 1985))). “[S]ection 455 includes no provision for referral of the question of recusal 9 to another judge; if the judge sitting on the case is aware of grounds for recusal under section 10 455, that judge has a duty to recuse himself or herself.” Id. (quoting Sibla, 624 F.2d at 868). On 11 the other hand, “in the absence of a legitimate reason to recuse himself, a judge should participate 12 in cases assigned.” Id. (quoting United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008)). 13 Federal law provides that “[a]ny justice, judge, or magistrate judge of the United States shall 14 disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 15 Id. (quoting 28 U.S.C. § 455(a)). Section (b) of that statute sets forth a number of additional 16 grounds for disqualification, including where the judge “has a personal bias or prejudice 17 concerning a party,” “personal knowledge of disputed evidentiary facts concerning the 18 proceeding,” where “in private practice he served as lawyer in the matter in controversy,” or “has 19 been a material witness concerning it.” Id. (quoting § 455(b)). 20 28 U.S.C. § 144 provides: 21 “Whenever a party to any proceeding in a district court makes and files a 22 timely and sufficient affidavit that the judge before whom the matter is pending 23 has a personal bias or prejudice either against him or in favor of any adverse party, 24 such judge shall proceed no further therein, but another judge shall be assigned to 25 hear such proceeding. 26 The affidavit shall state the facts and the reasons for the belief that bias or 27 prejudice exists, and shall be filed not less than ten days before the beginning of 28 the term at which the proceeding is to be heard, or good cause shall be shown for 1 failure to file it within such time. A party may file only one such affidavit in any 2 case. It shall be accompanied by a certificate of counsel of record stating that it is 3 made in good faith.” 4 A motion under section 144 is initially addressed to the judge whose impartiality is being 5 questioned. Brew, 2017 U.S. Dist. LEXIS 168135, at *4 (citing see United States v. Azhocar, 6 581 F.2d 735, 738 (9th Cir. 1978)). “Section 144 expressly conditions relief upon the filing of a 7 timely and legally sufficient affidavit.” Id. (quoting Sibla, 624 F.2d at 867). “Only after the legal 8 sufficiency of the affidavit is determined does it become the duty of the judge to ‘proceed no 9 further’ in the case” and another judge is assigned to hear the proceeding. Id. (quoting Azhocar, 10 581 F.2d at 738). An affidavit is sufficient where it “specifically alleges facts that fairly support 11 the contention that the judge exhibits bias or prejudice directed toward a party that stems from 12 an extrajudicial source.” Id. (quoting Sibla, 624 F.2d at 868). 13 Nevertheless, “[t]he test for personal bias or prejudice in section 144 is identical to that 14 in section 455(b)(1).” Id. (quoting Sibla at 867). In either case, the substantive standard is 15 “[w]hether a reasonable person with knowledge of all the facts would conclude that the judge’s 16 impartiality might reasonably be questioned.” Id. (quoting United States v. Hernandez, 109 F.3d 17 1450, 1453 (9th Cir. 1997)). The bias must arise from an extrajudicial source and cannot be based 18 solely on information gained in the course of the proceedings. Id. (citing Hernandez at 1453 19 (citing Liteky v. United States, 510 U.S. 540, 554-56, 114 S. Ct. 1147, 127 L. Ed. 2d 474 20 (1994))). “Judicial rulings alone almost never constitute a valid basis for a bias or partiality 21 motion.” Id. (quoting Liteky, 510 U.S. at 555). “In and of themselves . . . they cannot possibly 22 show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the 23 degree of favoritism or antagonism required . . . when no extrajudicial source is involved.” Id. 24 (quoting Liteky at 555.) 25 B. Plaintiff Has Failed to Sufficiently Allege Bias or Prejudice Against Him 26 Plaintiff argues that the magistrate judge assigned to this case is either biased or 27 prejudiced against this case or is abusing his discretion by waiting to screen Plaintiff’s Complaint 28 until after Plaintiff’s Complaints in later-filed cases have already been screened. Plaintiff asserts 1 that his Complaint was filed twenty-two months ago and has not yet been screened. Plaintiff also 2 asserts that the magistrate judge has abused his discretion under the false pretense that the Court 3 is so overburdened with cases that he is unable to screen Plaintiff’s Complaint within the twenty- 4 two months. Plaintiff asserts that he has filed other complaints in this same Court after the 5 Complaint for this case was filed and that some of his later-filed Complaints have already been 6 screened, which proves that the magistrate judge was untruthful in claiming that the court screens 7 cases in the order they are received. Plaintiff argues that a reasonable person, knowing all the 8 relevant facts, would harbor doubts about the judge’s impartiality. He argues that the judge’s 9 apparent impartiality makes it probable that a fair trial cannot be held. 10 Discussion 11 It is true that the Court strives to screen Complaints in the order they are received, but 12 this is not always possible. The Court handles a large and diverse caseload and must make 13 decisions as circumstances arise. Plaintiff’s Complaint will be screened in due course. 14 Plaintiff has failed to offer a sufficient affidavit specifically alleging facts to support the 15 contention that Magistrate Judge Austin exhibits bias or prejudice towards him or his case. 16 Plaintiff has not supported his motion with any evidence that the Magistrate Judge has a personal 17 bias against Plaintiff from an extra-judicial source. A judge’s rulings while presiding over a case 18 do not constitute extra-judicial conduct. Focus Media, Inc. v. NBC, 378 F.3d 916, 930 (9th Cir. 19 2004). Plaintiff’s disagreement with the delay in screening of his Complaint is not a legitimate 20 ground for seeking disqualification of a judge. 21 III. CONCLUSION 22 Therefore, based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion 23 for the recusal of Magistrate Judge Gary S. Austin is DENIED. 24 IT IS SO ORDERED. 25 26 Dated: July 27, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 27 28