Rodney Glen King v. United States District Court for the Central District of California, City of Los Angeles, Real Parties in Interest ( 1994 )

ORDER

Rodney King has filed a petition for a writ of mandamus seeking to have Judge John G. Davies disqualified from presiding at the trial of his civil damage action against the City of Los Angeles and the officers involved in his beating. We deny his petition.

The statutory provision underlying King’s mandamus petition, 28 U.S.C. § 455(a), states that “[a]ny justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might- reasonably be questioned.” Recusal ordinarily is required “only if the bias or prejudice stems from an extrajudicial source,” and not from a judge’s conduct or rulings during the course of judicial proceedings. Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 885 (9th Cir.1991).

Petitioner does not claim that an extrajudicial source has biased Judge Davies. Rather, his claim for relief is based on the pervasive bias exception, which is applicable when the petitioner shows that “a judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party.” United States v. Monaco, 852 F.2d 1143, 1147 (9th Cir.1988), cert. denied, 488 U.S. 1040, 109 S.Ct. 864, 102 L.Ed.2d 988 (1989). Petitioner contends that this exception applies to in-court statements made in earlier proceedings that indicate a view on issues that will arise in a pending proceeding. He also contends that, so construed, the exception would be applicable here.

This court has not yet considered whether this exception is applicable in cases in which the alleged bias consists of statements other than those reflecting personal animosity or prejudice. Other circuits have rejected petitioner’s theory. Davis v. CIR, 734 F.2d 1302, 1303 (8th Cir.1984); United States v. Sims, 845 F.2d 1564, 1570 (11th Cir.), cert. denied, 488 U.S. 957, 109 S.Ct. 395, 102 L.Ed.2d 384 (1988). Under these circumstances, we cannot say that the district court’s refusal to recuse itself is clearly erroneous. See Bauman v. United States District Court, 557 F.2d 650, 654-55 (9th Cir.1977); In re Cement Antitrust Litigation, 688 F.2d 1297, 1305 (9th Cir.1982).

Accordingly, the petition is DENIED.