1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEFFREY BAYER, Case No. 22-cv-07440-AMO
8 Plaintiff, ORDER DENYING MOTION TO 9 v. DISQUALIFY
10 CITY AND COUNTY OF SAN Re: Dkt. No. 57 FRANCISCO, 11 Defendant.
12 13 Plaintiff Jeffrey Bayer, who is not represented by counsel, moves to disqualify the 14 undersigned from presiding over this action pursuant to 28 U.S.C. § 144. 15 Section 144 provides:
16 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the 17 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 18 therein, but another judge shall be assigned to hear such proceeding.
19 The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days 20 before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such 21 time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is 22 made in good faith. 23 28 U.S.C. § 144.1 An affidavit is legally sufficient where “a reasonable person with knowledge of 24 all the facts would conclude that the judge’s impartiality might reasonably be questioned.” United 25 States v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir. 1997) (internal quotations and citation 26
27 Because Section 144 governs here, the Court does not address Bayer’s references to California 1 omitted). The presiding judge has the authority to “pass upon [the affidavit’s] legal sufficiency.” 2 United States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 1978). After the judge determines that “the 3 legal sufficiency of the affidavit has been established,” the motion is “referred to another judge for 4 a determination of its merits.” United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (citations 5 omitted); see also Civil L.R. 3-14 (“Whenever an affidavit of bias or prejudice directed at a Judge 6 of this Court is filed pursuant to 28 U.S.C. § 144, and the Judge has determined not to recuse him 7 or herself and found that the affidavit is neither legally insufficient nor interposed for delay, the 8 Judge shall refer the request for disqualification to the Clerk for random assignment to another 9 Judge.”). 10 Bayer seeks disqualification in part because of the undersigned’s adverse rulings on 11 successive motions for temporary restraining orders, claiming that those decisions demonstrate 12 malice towards him. ECF 66 at 2-3. Assuming, without deciding, that Bayer’s prior motion to 13 disqualify Judge Donato does not preclude him from filing the second motion to disqualify now 14 pending before this Court, Bayer’s affidavit2 is nonetheless legally insufficient. “[C]onduct or 15 rulings made during the course of the proceeding,” such as the Court’s orders denying Bayer’s 16 motions for temporary restraining orders, are not grounds for disqualification. See Toth v. Trans 17 World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (“The bias or prejudice alleged arose 18 from conduct during the judicial proceeding, and the motion and affidavit, thus, were legally 19 insufficient.”). 20 Bayer also seeks disqualification on the basis of claimed bias or prejudice stemming from 21 a purported connection between the undersigned and the Defendant City and County of San 22 Francisco. ECF 66 at 3. He asserts that the undersigned “was appointed to the judge position by 23 [a] tie-breaking vote of [the] previous District Attorney for the Defendant,” is acting in collusion 24 with Defendant’s employees,” and “is not capable of acting without bias or prejudice as shown by 25 26
27 2 Given Bayer’s pro se status, the Court construes Bayer’s “Motion & Affidavit to Disqualify 1 the fact that this case should have been in front of and decided by a jury long ago[.]” Id.; ECF 57 2 at 2. 3 These assertions also do not warrant disqualification. Bayer has not demonstrated that the 4 undersigned has any personal relationship to any employee of Defendant. To the extent he 5 suggests such a relationship exists because a previous District Attorney cast a tie-breaking vote 6 during the judicial confirmation process, that amounts to nothing more than speculation. Such 7 speculation is insufficient to warrant recusal. See Clemens v. U.S. Dist. Ct. for Cent. Dist. of 8 California, 428 F.3d 1175, 1180 (9th Cir. 2005) (finding that speculation about a judge’s personal 9 relationships is not a basis for disqualification under 28 U.S.C. § 455).3 In any event, even if the 10 claimed personal connection existed, that alone would not entitle Bayer to prevail on the instant 11 motion. See Sewer Alert Comm. v. Pierce Cnty., 791 F.2d 796, 798 (9th Cir. 1986) (district court 12 did not abuse discretion in denying motion for recusal where the alleged conflict of interest, bias, 13 and prejudice stemmed from judge’s acquaintance with the defendants and his residence in the 14 county subject to the litigation). 15 Bayer also lacks any facts to support the contention that this case has not advanced to trial 16 because of any bias or prejudice of the undersigned or because the undersigned is acting in 17 collusion with Defendants. This case has not advanced to trial because Bayer has yet to state a 18 plausible claim for relief under federal law.4 Absent such a claim, the case will not survive 19 beyond a motion to dismiss. Bayer’s assertions of collusion and bias or prejudice are thus merely 20 veiled attacks on the Court’s rulings on past motions to dismiss, but again, adverse rulings are not 21 a basis for recusal. See Toth, 862 F.2d at 1388. 22 23 3 Whether under Section 144 or Section 455, “recusal is appropriate where a reasonable person 24 with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be 25 questioned.” Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993); see also Sibla, 624 F.2d at 867 (concluding that the substantive test for recusal under Section 144 or Section 455 is the 26 same).
27 4 Both Judge Donato and the undersigned have declined to exercise supplemental jurisdiction over 1 For the reasons set forth above, the Court finds that Bayer’s affidavit is legally insufficient. 2 || Because Bayer’s affidavit is legally insufficient, the motion to disqualify is DENIED. If Bayer 3 wishes to proceed before a different judge, the Court reminds him of the option to consent to 4 || magistrate judge jurisdiction. See Civil L.R.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JEFFREY BAYER, Case No. 22-cv-07440-AMO
8 Plaintiff, ORDER DENYING MOTION TO 9 v. DISQUALIFY
10 CITY AND COUNTY OF SAN Re: Dkt. No. 57 FRANCISCO, 11 Defendant.
12 13 Plaintiff Jeffrey Bayer, who is not represented by counsel, moves to disqualify the 14 undersigned from presiding over this action pursuant to 28 U.S.C. § 144. 15 Section 144 provides:
16 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the 17 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 18 therein, but another judge shall be assigned to hear such proceeding.
19 The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days 20 before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such 21 time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is 22 made in good faith. 23 28 U.S.C. § 144.1 An affidavit is legally sufficient where “a reasonable person with knowledge of 24 all the facts would conclude that the judge’s impartiality might reasonably be questioned.” United 25 States v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir. 1997) (internal quotations and citation 26
27 Because Section 144 governs here, the Court does not address Bayer’s references to California 1 omitted). The presiding judge has the authority to “pass upon [the affidavit’s] legal sufficiency.” 2 United States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 1978). After the judge determines that “the 3 legal sufficiency of the affidavit has been established,” the motion is “referred to another judge for 4 a determination of its merits.” United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980) (citations 5 omitted); see also Civil L.R. 3-14 (“Whenever an affidavit of bias or prejudice directed at a Judge 6 of this Court is filed pursuant to 28 U.S.C. § 144, and the Judge has determined not to recuse him 7 or herself and found that the affidavit is neither legally insufficient nor interposed for delay, the 8 Judge shall refer the request for disqualification to the Clerk for random assignment to another 9 Judge.”). 10 Bayer seeks disqualification in part because of the undersigned’s adverse rulings on 11 successive motions for temporary restraining orders, claiming that those decisions demonstrate 12 malice towards him. ECF 66 at 2-3. Assuming, without deciding, that Bayer’s prior motion to 13 disqualify Judge Donato does not preclude him from filing the second motion to disqualify now 14 pending before this Court, Bayer’s affidavit2 is nonetheless legally insufficient. “[C]onduct or 15 rulings made during the course of the proceeding,” such as the Court’s orders denying Bayer’s 16 motions for temporary restraining orders, are not grounds for disqualification. See Toth v. Trans 17 World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (“The bias or prejudice alleged arose 18 from conduct during the judicial proceeding, and the motion and affidavit, thus, were legally 19 insufficient.”). 20 Bayer also seeks disqualification on the basis of claimed bias or prejudice stemming from 21 a purported connection between the undersigned and the Defendant City and County of San 22 Francisco. ECF 66 at 3. He asserts that the undersigned “was appointed to the judge position by 23 [a] tie-breaking vote of [the] previous District Attorney for the Defendant,” is acting in collusion 24 with Defendant’s employees,” and “is not capable of acting without bias or prejudice as shown by 25 26
27 2 Given Bayer’s pro se status, the Court construes Bayer’s “Motion & Affidavit to Disqualify 1 the fact that this case should have been in front of and decided by a jury long ago[.]” Id.; ECF 57 2 at 2. 3 These assertions also do not warrant disqualification. Bayer has not demonstrated that the 4 undersigned has any personal relationship to any employee of Defendant. To the extent he 5 suggests such a relationship exists because a previous District Attorney cast a tie-breaking vote 6 during the judicial confirmation process, that amounts to nothing more than speculation. Such 7 speculation is insufficient to warrant recusal. See Clemens v. U.S. Dist. Ct. for Cent. Dist. of 8 California, 428 F.3d 1175, 1180 (9th Cir. 2005) (finding that speculation about a judge’s personal 9 relationships is not a basis for disqualification under 28 U.S.C. § 455).3 In any event, even if the 10 claimed personal connection existed, that alone would not entitle Bayer to prevail on the instant 11 motion. See Sewer Alert Comm. v. Pierce Cnty., 791 F.2d 796, 798 (9th Cir. 1986) (district court 12 did not abuse discretion in denying motion for recusal where the alleged conflict of interest, bias, 13 and prejudice stemmed from judge’s acquaintance with the defendants and his residence in the 14 county subject to the litigation). 15 Bayer also lacks any facts to support the contention that this case has not advanced to trial 16 because of any bias or prejudice of the undersigned or because the undersigned is acting in 17 collusion with Defendants. This case has not advanced to trial because Bayer has yet to state a 18 plausible claim for relief under federal law.4 Absent such a claim, the case will not survive 19 beyond a motion to dismiss. Bayer’s assertions of collusion and bias or prejudice are thus merely 20 veiled attacks on the Court’s rulings on past motions to dismiss, but again, adverse rulings are not 21 a basis for recusal. See Toth, 862 F.2d at 1388. 22 23 3 Whether under Section 144 or Section 455, “recusal is appropriate where a reasonable person 24 with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be 25 questioned.” Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993); see also Sibla, 624 F.2d at 867 (concluding that the substantive test for recusal under Section 144 or Section 455 is the 26 same).
27 4 Both Judge Donato and the undersigned have declined to exercise supplemental jurisdiction over 1 For the reasons set forth above, the Court finds that Bayer’s affidavit is legally insufficient. 2 || Because Bayer’s affidavit is legally insufficient, the motion to disqualify is DENIED. If Bayer 3 wishes to proceed before a different judge, the Court reminds him of the option to consent to 4 || magistrate judge jurisdiction. See Civil L.R. 73-1(b) (“In cases that are assigned to a District 5 Judge, the parties may consent at any time to the Court reassigning the case to a Magistrate Judge 6 || for all purposes, including entry of final judgment, pursuant to 28 U.S.C. § 636(c).”). The one- 7 || page form to consent to a magistrate judge is available on the Court’s website at 8 || https://cand.uscourts.gov/forms/civil-forms/ . 9 IT IS SO ORDERED. 10 || Dated: February 22, 2024 11 ‘Moc □
coh ARACELI MARTINEZ-OLGUIN 13 United States District Judge
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