Brandon v. Department of Corrections of Washington

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 MYRON G. BRANDON, CASE NO. 3:22-CV-5284-LK-DWC 11 Plaintiff, ORDER DECLINING TO 12 v. VOLUNTARILY RECUSE 13 DEPARTMENT OF CORRECTIONS OF WASHINGTON, et al., 14 Defendants. 15

16 Plaintiff Myron G. Brandon filed this action alleging violations of his due process rights 17 and a DOC policy in connection with his transfer to a different intrastate prison. The District 18 Court referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge 19 David W. Christel. Presently before the Court is Plaintiff’s Motion to Change to Another Judge 20 Due to Prejudice, which the Court interprets as a motion to recuse pursuant to Local Civil Rule 21 (“LCR”) 3(f). Dkt. 32. After review of Plaintiff’s Motion (Dkt. 32) and the relevant record, the 22 undersigned declines to recuse himself and refers the Motion and this Order to Chief Judge 23 Estudillo pursuant to LCR 3(f). 24 1 I. Discussion 2 Pursuant to LCR 3(f), whenever a motion to recuse is filed pursuant to 28 U.S.C. § 144 or 3 28 U.S.C. § 455, “the challenged judge will review the motion papers and decide whether to 4 recuse voluntarily.”

5 A judge of the United States shall disqualify himself in any proceeding in which his 6 impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a). A federal judge also shall 7 disqualify himself in circumstances where he has a personal bias or prejudice concerning a party 8 or personal knowledge of disputed evidentiary facts concerning the proceeding. Id. at §455(b)(1). 9 28 U.S.C. § 144 states: 10 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal 11 bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such 12 proceeding. The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists. 13 28 U.S.C. § 144. 14 Under both 28 U.S.C. § 144 and 28 U.S.C. § 455, recusal of a federal judge is appropriate 15 if “a reasonable person with knowledge of all the facts would conclude that the judge’s 16 impartiality might reasonably be questioned.” Yagman v. Republic Insurance, 987 F.2d 622, 626 17 (9th Cir. 1993). This is an objective inquiry concerned with whether there is the appearance of 18 bias, not whether there is bias in fact. Preston v. United States, 923 F.2d 731, 734 (9th Cir.1992); 19 United States v. Conforte, 624 F.2d 869, 881 (9th Cir.1980). In Liteky v. United States, 510 U.S. 20 540 (1994), the United States Supreme Court further explained the narrow basis for recusal: 21 [J]udicial rulings alone almost never constitute a valid basis for a bias or partiality 22 motion. . . . [O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, 23 do not constitute a basis for a bias or partiality motion unless they display a deep seated favoritism or antagonism that would make fair judgment impossible. Thus, 24 1 judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias 2 or partiality challenge.

3 510 U.S. at 555. 4 Here, Plaintiff contends the undersigned should recuse himself on the basis of 5 unfavorable rulings the undersigned made against Plaintiff in a prior case. See Dkt. 32. Plaintiff’s 6 claim of judicial bias arising from his disagreement with the manner in which the undersigned 7 adjudicated a prior case is insufficient to support recusal. See States v. Sudley, 783 F.2d 934, 939 8 (9th Cir. 1986) (“[A] judge’s prior adverse ruling is not sufficient cause for recusal.”); accord 9 Liteky, 510 U.S. at 555 (“[J]udicial rulings alone almost never constitute a valid basis for a bias 10 or partiality motion.”). The undersigned makes rulings in each case based upon the issues 11 presented by the parties or upon an independent review by the Court and has no personal bias or 12 reason to be partial to one side or the other in this matter. Plaintiff has not shown a reasonable 13 person could question this Court’s impartiality. Accordingly, the undersigned will not recuse 14 himself voluntarily from this case. 15 II. Conclusion 16 Based on the foregoing reasons, this Court finds there is no reasonable basis for a 17 voluntary recusal in this matter. Therefore, the undersigned declines to recuse himself 18 voluntarily. 19 The Clerk is directed to refer Plaintiff’s Motion (Dkt. 32) to Chief Judge Estudillo in 20 accordance with Local Civil Rule 3(f). 21 22 23

24 1 The Clerk is also directed to send a copy of this Order to Plaintiff, to the Honorable 2 David G. Estudillo, and to the Honorable Lauren King. 3 Dated this 12th day of October, 2022. 4 A 5 David W. Christel United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24