1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 DARRELL LEE INGMIRE-LOPEZ, Case No. 2:22-cv-01606-RAJ-TLF 7 Plaintiff, v. ORDER ON MOTION FOR 8 RECUSAL WHATCOM COUNTY JAIL, et al., 9 Defendants. 10
11 This matter comes before the Court on plaintiff’s “motion for recusal” in which he 12 requests that this Court recuse itself from this case. Dkt. 28. After review of plaintiff’s 13 motion, this Court will not recuse itself and refers plaintiff’s motion and this order to 14 Chief Judge David G. Estudillo pursuant to Local Civil Rule 3(e). 15 BACKGROUND 16 Plaintiff, a prisoner currently confined at Coyote Ridge Corrections Center, 17 proceeds pro se in this action. Plaintiff previously moved to proceed in forma pauperis 18 (IFP) in this action. Dkts. 1, 12. On April 17, 2023, the Court issued an order granting 19 plaintiff’s motion to proceed IFP and “directing institution to calculate, collect, and 20 forward payments” pursuant to 28 U.S.C. § 1915. See Dkts. 20, 21. On the same date, 21 this Court issued an order directing plaintiff to either show cause why his complaint 22 should not be dismissed as deficient or to file an amended complaint correcting certain 23 specified deficiencies in his complaint. Dkt. 22. 24 1 On April 24, 2023, plaintiff filed two responses to the Court’s order to show cause 2 in which he objects to the Court’s order granting IFP to the extent it requires him to 3 repay the filing fee over time and argues that his complaint is sufficient. Dkts. 23, 24. 4 On June 26, 2023, the Court issued an order stating that upon further review of
5 plaintiff’s submissions and the record in the case, it became clear that plaintiff had failed 6 to submit a complete and sufficient IFP application as he had failed to sign and return 7 the “Acknowledgement and Authorization” portion of the IFP application. Dkt. 27; see 8 Dkts. 1, 12. This portion of the IFP application provides: 9 By choosing to bring a civil action, I acknowledge I am responsible for payment of the full $350.00 filing fee under 28 U.S.C. § 1915. I authorize the 10 agency having custody of me to collect from my account and forward to the Clerk of the United States District Court the initial partial filing fee calculated under the Certification and Calculation section and payments pursuant to 28 U.S.C. § 11 1915(b). I understand I am required to make monthly payments of twenty (20) 12 percent of my preceding months income credited to my account and the agency having custody of me will forward funds to the Clerk of the United States District 13 Court each time the amount in the account exceeds ten ($10.00) dollars until the filing fee is paid in full. 14 Dkts. 2-1, 27. 15 The Court further stated that because plaintiff failed to sign and return the 16 “Acknowledgment and Authorization” portion of the IFP form, his IFP application 17 remained deficient and his motion to proceed IFP should not have been granted. Dkt. 18 27. Thus, the Court informed plaintiff that if he wished to proceed with this action, he 19 must either cure his deficient IFP application by signing the “Acknowledgment and 20 Authorization” portion of the IFP form, or he must pay the filing fee in full. Id. 21 The Court also noted that in objecting to the Court’s order granting IFP, plaintiff 22 argued that he should not be required to repay the filing fee because he is indigent. 23 Dkts. 27, 23. The Court advised plaintiff that pursuant to 28 U.S.C. § 1915(a), a Court 24 1 may authorize the commencement of an action by a prisoner without the prepayment of 2 fees provided the prisoner files an affidavit including a statement of all assets such 3 prisoner possesses and that they are unable to pay such fees or give security therefor. 4 Dkt. 27; see 28 U.S.C. § 1915(b). However, the statute makes clear that when a
5 prisoner is granted leave to proceed in a civil action without the prepayment of fees, the 6 prisoner is still required to pay the full amount of the filing fee, they are simply permitted 7 to do so over time rather than paying the entirety of the fee up front. Id. 8 Accordingly, the Court ordered that, on or before July 24, 2023, plaintiff must 9 either: (1) cure the IFP application deficiency by signing the “Acknowledgement and 10 Authorization” portion of the IFP application; or (2) pay the filing fee in full. Dkt. 27. The 11 Court stated that if plaintiff failed to either pay the filing fee in full or cure the IFP 12 deficiency by signing and submitting the “Acknowledgment and Authorization” by July 13 24, 2023, the Court would consider this an indication that plaintiff does not intend to 14 proceed with the action, and the Court would vacate the order granting IFP and
15 recommend dismissing the action without prejudice. Id. 16 On July 5, 2023, plaintiff filed the instant motion requesting that the undersigned 17 recuse from this case. Dkt. 28. The basis for plaintiff’s motion appears to be that he 18 disagrees with the requirement under 28 U.S.C. § 1915 that he re-pay the filing fee in 19 this action and further disagrees with the undersigned’s previous order directing that 20 plaintiff show cause why his complaint should not be dismissed or file an amended 21 complaint to cure various deficiencies in his original complaint. Id. 22 23
24 1 DISCUSSION
2 Pursuant to 28 U.S.C. § 455(a), a Judge of the United States shall disqualify 3 themselves in any proceeding in which their impartiality “might reasonably be 4 questioned.” A federal judge also shall disqualify themselves in circumstances where 5 they have a personal bias or prejudice concerning a party or personal knowledge of 6 disputed evidentiary facts concerning the proceeding. 28 U.S.C. § 455(b)(1). Pursuant 7 to 28 U.S.C. § 144: 8 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before 9 whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge 10 shall proceed no further therein, but another judge shall be assigned to hear such proceeding. 11 Under both 28 U.S.C. §144 and 28 U.S.C. § 455, recusal of a federal judge is 12 appropriate if “a reasonable person with knowledge of all the facts would conclude that 13 the judge’s impartiality might reasonably be questioned.” Yagman v. Republic 14 Insurance, 987 F.2d 622, 626 (9th Cir.1993). This is an objective inquiry concerned with 15 whether there is the appearance of bias, not whether there is bias in fact. Preston v. 16 United States, 923 F.2d 731, 734 (9th Cir.1992); United States v.
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1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 DARRELL LEE INGMIRE-LOPEZ, Case No. 2:22-cv-01606-RAJ-TLF 7 Plaintiff, v. ORDER ON MOTION FOR 8 RECUSAL WHATCOM COUNTY JAIL, et al., 9 Defendants. 10
11 This matter comes before the Court on plaintiff’s “motion for recusal” in which he 12 requests that this Court recuse itself from this case. Dkt. 28. After review of plaintiff’s 13 motion, this Court will not recuse itself and refers plaintiff’s motion and this order to 14 Chief Judge David G. Estudillo pursuant to Local Civil Rule 3(e). 15 BACKGROUND 16 Plaintiff, a prisoner currently confined at Coyote Ridge Corrections Center, 17 proceeds pro se in this action. Plaintiff previously moved to proceed in forma pauperis 18 (IFP) in this action. Dkts. 1, 12. On April 17, 2023, the Court issued an order granting 19 plaintiff’s motion to proceed IFP and “directing institution to calculate, collect, and 20 forward payments” pursuant to 28 U.S.C. § 1915. See Dkts. 20, 21. On the same date, 21 this Court issued an order directing plaintiff to either show cause why his complaint 22 should not be dismissed as deficient or to file an amended complaint correcting certain 23 specified deficiencies in his complaint. Dkt. 22. 24 1 On April 24, 2023, plaintiff filed two responses to the Court’s order to show cause 2 in which he objects to the Court’s order granting IFP to the extent it requires him to 3 repay the filing fee over time and argues that his complaint is sufficient. Dkts. 23, 24. 4 On June 26, 2023, the Court issued an order stating that upon further review of
5 plaintiff’s submissions and the record in the case, it became clear that plaintiff had failed 6 to submit a complete and sufficient IFP application as he had failed to sign and return 7 the “Acknowledgement and Authorization” portion of the IFP application. Dkt. 27; see 8 Dkts. 1, 12. This portion of the IFP application provides: 9 By choosing to bring a civil action, I acknowledge I am responsible for payment of the full $350.00 filing fee under 28 U.S.C. § 1915. I authorize the 10 agency having custody of me to collect from my account and forward to the Clerk of the United States District Court the initial partial filing fee calculated under the Certification and Calculation section and payments pursuant to 28 U.S.C. § 11 1915(b). I understand I am required to make monthly payments of twenty (20) 12 percent of my preceding months income credited to my account and the agency having custody of me will forward funds to the Clerk of the United States District 13 Court each time the amount in the account exceeds ten ($10.00) dollars until the filing fee is paid in full. 14 Dkts. 2-1, 27. 15 The Court further stated that because plaintiff failed to sign and return the 16 “Acknowledgment and Authorization” portion of the IFP form, his IFP application 17 remained deficient and his motion to proceed IFP should not have been granted. Dkt. 18 27. Thus, the Court informed plaintiff that if he wished to proceed with this action, he 19 must either cure his deficient IFP application by signing the “Acknowledgment and 20 Authorization” portion of the IFP form, or he must pay the filing fee in full. Id. 21 The Court also noted that in objecting to the Court’s order granting IFP, plaintiff 22 argued that he should not be required to repay the filing fee because he is indigent. 23 Dkts. 27, 23. The Court advised plaintiff that pursuant to 28 U.S.C. § 1915(a), a Court 24 1 may authorize the commencement of an action by a prisoner without the prepayment of 2 fees provided the prisoner files an affidavit including a statement of all assets such 3 prisoner possesses and that they are unable to pay such fees or give security therefor. 4 Dkt. 27; see 28 U.S.C. § 1915(b). However, the statute makes clear that when a
5 prisoner is granted leave to proceed in a civil action without the prepayment of fees, the 6 prisoner is still required to pay the full amount of the filing fee, they are simply permitted 7 to do so over time rather than paying the entirety of the fee up front. Id. 8 Accordingly, the Court ordered that, on or before July 24, 2023, plaintiff must 9 either: (1) cure the IFP application deficiency by signing the “Acknowledgement and 10 Authorization” portion of the IFP application; or (2) pay the filing fee in full. Dkt. 27. The 11 Court stated that if plaintiff failed to either pay the filing fee in full or cure the IFP 12 deficiency by signing and submitting the “Acknowledgment and Authorization” by July 13 24, 2023, the Court would consider this an indication that plaintiff does not intend to 14 proceed with the action, and the Court would vacate the order granting IFP and
15 recommend dismissing the action without prejudice. Id. 16 On July 5, 2023, plaintiff filed the instant motion requesting that the undersigned 17 recuse from this case. Dkt. 28. The basis for plaintiff’s motion appears to be that he 18 disagrees with the requirement under 28 U.S.C. § 1915 that he re-pay the filing fee in 19 this action and further disagrees with the undersigned’s previous order directing that 20 plaintiff show cause why his complaint should not be dismissed or file an amended 21 complaint to cure various deficiencies in his original complaint. Id. 22 23
24 1 DISCUSSION
2 Pursuant to 28 U.S.C. § 455(a), a Judge of the United States shall disqualify 3 themselves in any proceeding in which their impartiality “might reasonably be 4 questioned.” A federal judge also shall disqualify themselves in circumstances where 5 they have a personal bias or prejudice concerning a party or personal knowledge of 6 disputed evidentiary facts concerning the proceeding. 28 U.S.C. § 455(b)(1). Pursuant 7 to 28 U.S.C. § 144: 8 Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before 9 whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge 10 shall proceed no further therein, but another judge shall be assigned to hear such proceeding. 11 Under both 28 U.S.C. §144 and 28 U.S.C. § 455, recusal of a federal judge is 12 appropriate if “a reasonable person with knowledge of all the facts would conclude that 13 the judge’s impartiality might reasonably be questioned.” Yagman v. Republic 14 Insurance, 987 F.2d 622, 626 (9th Cir.1993). This is an objective inquiry concerned with 15 whether there is the appearance of bias, not whether there is bias in fact. Preston v. 16 United States, 923 F.2d 731, 734 (9th Cir.1992); United States v. Conforte, 624 F.2d 17 869, 881 (9th Cir.1980). In Liteky v. United States, 510 U.S. 540 (1994), the United 18 States Supreme Court further explained the narrow basis for recusal: 19 [J]udicial rulings alone almost never constitute a valid basis 20 for a bias or partiality motion. . . . [O]pinions formed by the judge on the basis of facts introduced or events occurring in 21 the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless 22 they display a deep seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks 23 during the course of a trial that are critical or disapproving of, 24 1 or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. 2 510 U.S. at 555. 3 Pursuant to Local Civil Rule 3(f), “[w]henever a motion to recuse directed at a 4 judge of this court is filed pursuant to 28 U.S.C. § 144 or 28 U.S.C. § 455, the 5 challenged judge will review the motion papers and decide whether to recuse 6 voluntarily.” LCR 3(f). “If the challenged judge decides not to voluntarily recuse, he or 7 she will direct the clerk to refer the motion to the chief judge, or the chief judge’s 8 designee.” Id. 9 The undersigned makes rulings in each case based upon the issues presented 10 by the parties or upon sua sponte review by the Court and has no personal bias or 11 reason to be partial to one side or the other in this matter. Plaintiff fails to offer evidence 12 of any extrajudicial source for the undersigned’s alleged bias, nor does he allege any 13 facts or instances demonstrating a “deep-seated bias” that would make fair judgment 14 impossible. Plaintiff has not shown a reasonable person could question this Court’s 15 impartiality. Accordingly, the undersigned will not recuse herself voluntarily from this 16 case. 17 CONCLUSION 18 Based on the foregoing reasons, this Court finds there is no reasonable basis for 19 a voluntary recusal in this matter. Therefore, the undersigned declines to recuse herself 20 voluntarily and in accordance with LCR 3(f), refers the motion to Chief Judge Estudillo. 21 The Clerk of the Court is directed to place the motion for the recusal of the 22 undersigned on Judge Estudillo’s motion calendar. 23 24 1 The Court will defer consideration of any motions or filings in this case pending 2 resolution of the recusal issue. The Clerk of the Court shall send a copy of this order to 3 plaintiff. 4 Dated this 6th day of July, 2023.
5 6 A 7 Theresa L. Fricke 8 United States Magistrate Judge
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