1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY H. SOLVEY, No. 1:19-cv-01444 JLT GSA (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION TO DISQUALIFY MAGISTRATE JUDGE 14 S. GATES, et al., (ECF No. 99) 15 Defendants. 16 17 18 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 19 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. An order 21 recommending that Plaintiff’s Motion for Summary Judgment be denied and that Defendants’ 22 Motion for Summary Judgment be granted is pending. ECF No. 95 (pending findings and 23 recommendations). 24 Before this Court is Plaintiff’s Motion to Disqualify Magistrate Judge. ECF No. 99. For 25 the reasons stated below, the motion will be denied. 26 27 28 1 I MOTION TO DISQUALIFY 2 Plaintiff brings the Motion to Disqualify pursuant to 28 U.S.C. §§ 144 and 455. ECF No. 3 99 at 1. In support of it, he states that the undersigned has demonstrated family bias and 4 prejudice against him as well as “overwhelming favoritism towards the opposing party[] 5 represented by the Attorney General’s Office.” Id. (brackets added). Specifically, Plaintiff 6 asserts that in a prior case that he had before the undersigned, Solvey v. Tilton, 1:07-cv-00182 7 LJO GSA1 (“Tilton”), the undersigned was offended by Plaintiff’s heritage and made derogatory 8 comments about his ancestor, “Pres./Chief Justice Uncle Taft.” ECF No. 99 at 2, ¶ 6. Plaintiff 9 further asserts that he then stated to the undersigned that his “older great great great uncle was 10 Pres. Grover Cleveland a Democrat, if that ma[de] [the Court] feel better.” Id. at 2-3, ¶ 6 11 (brackets added). 12 Plaintiff contends that after he made those comments, the undersigned then called him a 13 liar and told him that his entire lawsuit was “based on confusion and lies.” ECF No. 99 at 3, ¶ 7. 14 Plaintiff further contends that the undersigned told him that he “would never prevail against the 15 State.” Id. Plaintiff states that as a result of this interaction with the undersigned in the Tilton 16 matter, he abandoned his civil rights lawsuit due to “legal coercion and loss of confidence in the 17 legal justice system.” Id. 18 Plaintiff continues, making what appear to be last-minute arguments for the instant matter 19 Plaintiff has before the Court.2 See ECF No. 99 at 3-4, ¶¶ 9-14. He ends the motion by alleging 20 that the undersigned’s purported bias is “getting in the way of a fair and equitable jurist to 21 adjudicate [his] serious claims of civil rights violations.” Id. at 4, ¶ 15. For these reasons, 22 Plaintiff states, he is requesting reassignment of the undersigned “for all proceedings moving 23 forward on this issue/case and any other lawsuits that may be filed in this District.” Id. at 4, ¶ 16. 24 He believes that he “cannot get a fair proceeding” from the undersigned. Id. at 4, ¶ 22. 25 26 1 Although Plaintiff references the case number as “1:07-CV-00182-LBO-GSA,” the actual case 27 number is: 1:07-cv-00182 LJO GSA. 2 Because those arguments do not relate in a substantive way to the instant Motion to Disqualify, 28 the Court does not consider them herein. 1 Plaintiff asks the Court to “comb through the record of the Summary Judgment to 2 determine if in fact there is deep-seated favoritism or antagonism that makes the fair judgement 3 [sic] impossible, then move on the extrajudicial matter of the statements concerning Plaintiff’s 4 family and ancestors.” ECF No. 99 at 7. He also asks for a recusal or disqualification of the 5 undersigned going forward, or, in the alternative, assignment to a different magistrate judge. Id. 6 II. APPLICABLE LAW 7 Under 28 U.S.C. § 455, a judge “shall disqualify himself in any proceeding in which his 8 impartiality might reasonably be questioned,” including under circumstances where “he has a 9 personal bias or prejudice concerning a party.” Brew v. Fehderau, No. 1:17-cv-00681-AWI- 10 EPG-PC, 2017 U.S. Dist. LEXIS 168135, at *2-3 (E.D. Cal. Oct. 11, 2017) (quoting 28 11 U.S.C. § 455(a), (b)(1)). A motion under Section 455 is addressed to, and must be decided by, 12 the very judge whose impartiality is being questioned. Id. (citing Bernard v. Coyne, 31 F.3d 842, 13 843 (9th Cir. 1994)). “Section 455 clearly contemplates that decisions with respect to 14 disqualification should be made by the judge sitting in the case, and not by another 15 judge.” Id. (quoting Bernard, 31F. 3d at 843 (quoting United States v. Balistrieri, 779 F.2d 1191, 16 1202 (7th Cir. 1985))). “[S]ection 455 includes no provision for referral of the question of recusal 17 to another judge; if the judge sitting on the case is aware of grounds for recusal under section 18 455, that judge has a duty to recuse himself or herself.” Id. (quoting United States v. Sibla, 624 19 F.2d 864, 868 (9th Cir. 1980)). 20 On the other hand, “in the absence of a legitimate reason to recuse himself, a judge 21 should participate in cases assigned.” Id. (quoting United States v. Holland, 519 F.3d 909, 22 912 (9th Cir. 2008)). Federal law provides that “[a]ny justice, judge, or magistrate judge of the 23 United States shall disqualify himself in any proceeding in which his impartiality might 24 reasonably be questioned.” Id. (quoting 28 U.S.C. § 455(a)). Section (b) of that statute sets 25 forth a number of additional grounds for disqualification, including where the judge “has a 26 personal bias or prejudice concerning a party,” “personal knowledge of disputed evidentiary 27 facts concerning the proceeding,” where “in private practice he served as lawyer in the matter in 28 controversy,” or “has been a material witness concerning it.” Id. (quoting Section 455(b)). 1 A party moving for recusal pursuant to Section 455(b) must likewise demonstrate “actual bias 2 or prejudice based upon an extrajudicial source.” Ndoromo v. Barr, 486 F. Supp. 3d 388, 3 394 (D.D.C. 2020) (quoting Middlebrooks v. St. Coletta of Greater Wash., Inc., 710 F. Supp. 4 2d at 79 (citations omitted). 5 “Although the substantive test for bias or prejudice is identical in Sections 144 and 455, 6 the procedural requirements of the two sections are different.” Drevaleva v. United States VA, 7 2021 U.S. Dist. LEXIS 89927, at *3 (quoting Sibla, 624 F.2d at 867). “Section 455 sets forth no 8 procedural requirements. That section is directed to the judge, rather than the parties, and is self- 9 enforcing on the part of the judge,” with “no provision for referral of the question of recusal to 10 another judge.” Id. (quoting Sibla, 624 F.2d at 868 (citing Davis v. Bd. of Sch. Comm’rs, 517 11 F.2d 1044, 1051 (5th Cir. 1975); Nicodemus v. Chrysler Corp., 596 F.2d 152, 157 & n.10 (6th 12 Cir. 1979)).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STANLEY H. SOLVEY, No. 1:19-cv-01444 JLT GSA (PC) 12 Plaintiff, 13 v. ORDER DENYING PLAINTIFF’S MOTION TO DISQUALIFY MAGISTRATE JUDGE 14 S. GATES, et al., (ECF No. 99) 15 Defendants. 16 17 18 Plaintiff, a state prisoner proceeding pro se and in forma pauperis, has filed this civil 19 rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. An order 21 recommending that Plaintiff’s Motion for Summary Judgment be denied and that Defendants’ 22 Motion for Summary Judgment be granted is pending. ECF No. 95 (pending findings and 23 recommendations). 24 Before this Court is Plaintiff’s Motion to Disqualify Magistrate Judge. ECF No. 99. For 25 the reasons stated below, the motion will be denied. 26 27 28 1 I MOTION TO DISQUALIFY 2 Plaintiff brings the Motion to Disqualify pursuant to 28 U.S.C. §§ 144 and 455. ECF No. 3 99 at 1. In support of it, he states that the undersigned has demonstrated family bias and 4 prejudice against him as well as “overwhelming favoritism towards the opposing party[] 5 represented by the Attorney General’s Office.” Id. (brackets added). Specifically, Plaintiff 6 asserts that in a prior case that he had before the undersigned, Solvey v. Tilton, 1:07-cv-00182 7 LJO GSA1 (“Tilton”), the undersigned was offended by Plaintiff’s heritage and made derogatory 8 comments about his ancestor, “Pres./Chief Justice Uncle Taft.” ECF No. 99 at 2, ¶ 6. Plaintiff 9 further asserts that he then stated to the undersigned that his “older great great great uncle was 10 Pres. Grover Cleveland a Democrat, if that ma[de] [the Court] feel better.” Id. at 2-3, ¶ 6 11 (brackets added). 12 Plaintiff contends that after he made those comments, the undersigned then called him a 13 liar and told him that his entire lawsuit was “based on confusion and lies.” ECF No. 99 at 3, ¶ 7. 14 Plaintiff further contends that the undersigned told him that he “would never prevail against the 15 State.” Id. Plaintiff states that as a result of this interaction with the undersigned in the Tilton 16 matter, he abandoned his civil rights lawsuit due to “legal coercion and loss of confidence in the 17 legal justice system.” Id. 18 Plaintiff continues, making what appear to be last-minute arguments for the instant matter 19 Plaintiff has before the Court.2 See ECF No. 99 at 3-4, ¶¶ 9-14. He ends the motion by alleging 20 that the undersigned’s purported bias is “getting in the way of a fair and equitable jurist to 21 adjudicate [his] serious claims of civil rights violations.” Id. at 4, ¶ 15. For these reasons, 22 Plaintiff states, he is requesting reassignment of the undersigned “for all proceedings moving 23 forward on this issue/case and any other lawsuits that may be filed in this District.” Id. at 4, ¶ 16. 24 He believes that he “cannot get a fair proceeding” from the undersigned. Id. at 4, ¶ 22. 25 26 1 Although Plaintiff references the case number as “1:07-CV-00182-LBO-GSA,” the actual case 27 number is: 1:07-cv-00182 LJO GSA. 2 Because those arguments do not relate in a substantive way to the instant Motion to Disqualify, 28 the Court does not consider them herein. 1 Plaintiff asks the Court to “comb through the record of the Summary Judgment to 2 determine if in fact there is deep-seated favoritism or antagonism that makes the fair judgement 3 [sic] impossible, then move on the extrajudicial matter of the statements concerning Plaintiff’s 4 family and ancestors.” ECF No. 99 at 7. He also asks for a recusal or disqualification of the 5 undersigned going forward, or, in the alternative, assignment to a different magistrate judge. Id. 6 II. APPLICABLE LAW 7 Under 28 U.S.C. § 455, a judge “shall disqualify himself in any proceeding in which his 8 impartiality might reasonably be questioned,” including under circumstances where “he has a 9 personal bias or prejudice concerning a party.” Brew v. Fehderau, No. 1:17-cv-00681-AWI- 10 EPG-PC, 2017 U.S. Dist. LEXIS 168135, at *2-3 (E.D. Cal. Oct. 11, 2017) (quoting 28 11 U.S.C. § 455(a), (b)(1)). A motion under Section 455 is addressed to, and must be decided by, 12 the very judge whose impartiality is being questioned. Id. (citing Bernard v. Coyne, 31 F.3d 842, 13 843 (9th Cir. 1994)). “Section 455 clearly contemplates that decisions with respect to 14 disqualification should be made by the judge sitting in the case, and not by another 15 judge.” Id. (quoting Bernard, 31F. 3d at 843 (quoting United States v. Balistrieri, 779 F.2d 1191, 16 1202 (7th Cir. 1985))). “[S]ection 455 includes no provision for referral of the question of recusal 17 to another judge; if the judge sitting on the case is aware of grounds for recusal under section 18 455, that judge has a duty to recuse himself or herself.” Id. (quoting United States v. Sibla, 624 19 F.2d 864, 868 (9th Cir. 1980)). 20 On the other hand, “in the absence of a legitimate reason to recuse himself, a judge 21 should participate in cases assigned.” Id. (quoting United States v. Holland, 519 F.3d 909, 22 912 (9th Cir. 2008)). Federal law provides that “[a]ny justice, judge, or magistrate judge of the 23 United States shall disqualify himself in any proceeding in which his impartiality might 24 reasonably be questioned.” Id. (quoting 28 U.S.C. § 455(a)). Section (b) of that statute sets 25 forth a number of additional grounds for disqualification, including where the judge “has a 26 personal bias or prejudice concerning a party,” “personal knowledge of disputed evidentiary 27 facts concerning the proceeding,” where “in private practice he served as lawyer in the matter in 28 controversy,” or “has been a material witness concerning it.” Id. (quoting Section 455(b)). 1 A party moving for recusal pursuant to Section 455(b) must likewise demonstrate “actual bias 2 or prejudice based upon an extrajudicial source.” Ndoromo v. Barr, 486 F. Supp. 3d 388, 3 394 (D.D.C. 2020) (quoting Middlebrooks v. St. Coletta of Greater Wash., Inc., 710 F. Supp. 4 2d at 79 (citations omitted). 5 “Although the substantive test for bias or prejudice is identical in Sections 144 and 455, 6 the procedural requirements of the two sections are different.” Drevaleva v. United States VA, 7 2021 U.S. Dist. LEXIS 89927, at *3 (quoting Sibla, 624 F.2d at 867). “Section 455 sets forth no 8 procedural requirements. That section is directed to the judge, rather than the parties, and is self- 9 enforcing on the part of the judge,” with “no provision for referral of the question of recusal to 10 another judge.” Id. (quoting Sibla, 624 F.2d at 868 (citing Davis v. Bd. of Sch. Comm’rs, 517 11 F.2d 1044, 1051 (5th Cir. 1975); Nicodemus v. Chrysler Corp., 596 F.2d 152, 157 & n.10 (6th 12 Cir. 1979)). “A motion under § 455 requires a judge to determine “whether all the circumstances 13 call for recusal under the self-enforcing provisions of section 455(a) & (b)(1), a matter which 14 rests within the sound discretion of the judge.” Id. at 3-4 (quoting Sibla, 624 F.2d at 868 (citing 15 United States v. Schreiber, 599 F.2d 534, 536 (3d Cir. 1979)). As well, a charge of bias or 16 prejudice under Section 455(b)(1), or that a judge’s impartiality might reasonably be questioned 17 under Section 455(a), must be sufficiently grounded in fact to generate doubt in the mind of a 18 fully informed, objective observer; mere speculation or innuendo is not enough. (See, Melendres 19 v Arpaio, 2015 US Dist.179130; In Re United States, 666 F.2d 690). 20 A Recusal motions under Section 144 is conditioned upon the filing of a timely and 21 legally sufficient affidavit. (See, Sibla, 624 F.2d at 868; Blum v. Gulf Oil Corp., 597 F.2d 936, 22 938 (5th Cir. 1979); United States v. Azhocar, 581 F.2d 735, 738-40 (9th Cir. 1978); United 23 States v. Bennett, 539 F.2d 45, 51 (10th Cir. 1976). As well, Recusal motions under Section 455 24 must also be brought in a timely manner. Preston v US, 923 F.2d 731 (9th Cir 1991); Melendres, 25 supra (applying same timeliness standard of sec 144 to sec 455). This requirement avoids both 26 wasted judicial time and resources and a heightened risk that litigants will use recusal for strategic 27 purposes. Therefore, a party must seek to disqualify a judge in a timely fashion after the party 28 becomes aware of the basis of disqualification. (Preston, supra). The Ninth Circuit has 1 cautioned that a party that unduly delays the filing of a recusal motion is presumed to be filing it 2 for manipulative purposes. (Melendres, supra, citing E&J Gallo, 967 F.2d 1280). 3 In regard to Section 144, if the judge determines that the accompanying affidavit 4 specifically alleges facts stating grounds for recusal under Section 144, the legal sufficiency of 5 the affidavit has been established, and the motion must be referred to another judge for a 6 determination of its merits. (See, Sibla, 624 F.2d at 868). Recusal motions brought pursuant to 7 Section 144 are subject to the same timeliness requirement and extrajudicial source rule as 8 Section 455 motions. (See, US v. Studley, 783 F.2d 934 (9th Cir. 1986)). Moreover, 9 notwithstanding the differences, both Section 455 and Section 144 require that the bias or 10 impartiality must stem from an extrajudicial source, a source other than conduct or rulings made 11 during the course of a proceeding. (See. Sibla, 624 F.2d at 868; also Toth v. Trans World 12 Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (finding an affidavit “legally insufficient” 13 where it was based on “conduct during the judicial proceeding”)). “To disqualify a judge, the 14 alleged bias must constitute animus more active and deep-rooted than an attitude of disapproval 15 toward certain persons because of their known conduct.” (See, United States v. Wilkerson, 208 16 F.3d 794, 799 (9th Cir. 2000); see also Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 17 1147, 127 L. Ed. 2d 474 (1994)). 18 To repeat, under either statute, the bias must arise from an extrajudicial source and cannot 19 be based solely on information gained in the course of the proceedings. Amesquita v. Hickman, 20 No. 1:05-cv-00055-LJO-MJS (HC), 2018 U.S. Dist. LEXIS 22778, at *5 (E.D. Cal. Feb. 9, 2018) 21 (citing Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008) (citing Liteky, 510 U.S. at 554- 22 56)). The disqualifying bias must generally stem from something other than information and 23 beliefs the judge acquired while acting in his/her judicial capacity. (Melendres citing US v. 24 McTiernan, 695 F.3d 882 (9th Cir. 2012)). 25 III. DISCUSSION 26 A. Plaintiff’s Motion under both Section 144 & 455 Is Untimely 27 Plaintiff’s motion must be denied on this basis. First, from a procedural perspective under 28 Section 144, the motion is untimely. Plaintiff states that the alleged incident which he believes 1 warrants the disqualification of the undersigned occurred in 2010. ECF No. 99 at 2, ¶ 6. The 2 current case was filed in October 2019. See ECF No. 1 at 9 (signature date of complaint). The 3 undersigned was assigned to this case on March 19, 2020, ECF No. 19, and the current motion to 4 recuse was filed on the Court’s docketed on October 23, 2023. ECF No. 99. 5 Section 144 clearly requires that any party alleging that a presiding judge has a personal 6 bias or prejudice file an affidavit supported by facts and the reasons for the belief “not less than 7 ten days before the beginning of the term at which the proceeding is to be heard.” 28 U.S.C. § 8 144. In the instant case, Plaintiff knew by at least March 31, 2020, demonstrated by the fact that 9 when he filed a motion on the docket requesting “an enlargement of time”, ECF No 20, that the 10 matter had been referred to the undersigned, which assignment, as stated above, occurred on 11 March 19, 2020, ECF No. 19. Specifically, in the caption of his motion he lists the case # as 12 “1:19-cv-01444-GSA”. GSA is the undersigned’s initials. Yet knowing this, Plaintiff failed to 13 raise the alleged 2010 Tilton incident at that time in this matter and move to have the undersigned 14 recused. Instead, he raises the personal bias, prejudice and/or impartiality claims in his motion to 15 recuse more than 3 years later. Importantly, Plaintiff provides no good cause for his failure to 16 timely raise his concerns. See 28 U.S.C. § 144 (allowing good cause to excuse untimely filing of 17 affidavit of personal bias, prejudice). 18 A recusal motion under both Sections 144 and 455, as stated above, must be made in a 19 timely fashion. Melendres, supra, citing Preston, supra; United States v. Mikhel, 889 F.3d 1003, 20 1026 (9th Cir. 2018); E & J Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 21 1992). The failure to file a motion for disqualification more than one and a half years after a 22 party became aware of the grounds for disqualification has been found to be untimely. See, e.g., 23 United States v. Rogers, 119 F.3d 1377, 1382 (9th Cir. 1997); Wells Fargo Bank, N.A. v. Clark, 24 No. 18-35887, 2019 WL 4034732, at *1 (9th Cir. Aug. 27, 2019). Under Section 144, a Recusal 25 motion is strictly construed as to timeliness. (see, Melendres, supra citing United States v. Sykes, 26 7 F.3d 1331 (7th Cir 1993)). 27 Finally, the fact that Plaintiff filed the instant motion on the eve of this matter being 28 disposed of in Defendants’ favor is also appropriate for the Court to consider. “Where 1 unexplained delay in filing a recusal motion suggests that the recusal statute is being misused for 2 strategic purposes, the motion will be denied as untimely.” Mikhel, 889 F.3d at 1026-27 3 (citations omitted) (internal quotation marks omitted). For these reasons, the motion is untimely 4 on its face under sec 144, and under sec 455 for not being made in a timely fashion, thus it must 5 be denied under both statutory provisions. 6 B. Plaintiff’s Motion Fails to Provide Supporting Facts 7 Next, even if the motion had been timely filed, which it was not, the facts Plaintiff alleges 8 fail to support a finding of bias, prejudice, or lack of impartiality of the undersigned as the law 9 requires. Plaintiff alleges that in the 2010 Tilton case, the undersigned “was offended by [his] 10 heritage,” namely, Plaintiff’s claimed relationship to William Howard Taft, and that the 11 undersigned allegedly made some derogatory comments about Plaintiff’s ancestor Pres./Chief 12 Justice Uncle Taft, which were “maybe politically motivated.” Plaintiff further asserts that the 13 undersigned was “disparaging my ancestry and heritage.” See ECF No. 99 at 2-3, ¶ 6 (brackets 14 added), yet Plaintiff fails to provide the exact words he alleges were used by the undersigned 15 which he claims were derogatory, disparaging, and maybe politically motivated. Overall, these 16 allegations of bias are at best speculative, conclusory, wholly unsupported factually, and simply 17 untrue. In support of this, one need look no further than the Court’s docket entries in the Tilton 18 case. From a search of the Tilton case docket entries, the claimed conversation Plaintiff asserts 19 lacks any evidentiary support as the docket unquestionably demonstrates that no live court 20 proceeding(s) took place in the matter. On the contrary, from an examination of the docket the 21 Tilton case was conducted solely and entirely on filed documents. Plaintiff states in his 22 declaration that he came to the Fresno federal courthouse to conduct business in the Tilton matter 23 and that he “was discussing the fact concerning [his] relative William Howard Taft with some 24 lawyers and court audience” when the alleged derogatory comments were made, and that after 25 they were made the undersigned “walked back to his chambers.” This clearly implies that the 26 Court was in session when the alleged event occurred, but Plaintiff provides no specifics 27 regarding: 1- the date of this alleged event, nor even the month in which it allegedly occurred; 2- 28 the courtroom or floor of the courthouse where the alleged encounter took place; 3- the exact 1 reason for his appearance in court (or at the courthouse) that day; 4- whether his matter was on 2 calendar that day; and 5- if his matter was not on calendar that day, then for what purpose was he 3 in the undersigned’s courtroom. Finally, Plaintiff does not state what the undersigned supposedly 4 said, nor the words used, which Plaintiff interprets as derogatory and disparaging, other than his 5 assertion that the undersigned called him a “liar” and said that his whole lawsuit was based “on 6 confusion and lies.” 7 Importantly, in considering whether recusal is appropriate under Section 455, the judge is 8 free to make credibility determinations, assign to the evidence what he/she believes to be its 9 proper weight, and to contradict the evidence with facts drawn from his/her own personal 10 knowledge. (See, Melendres, supra, citing US v Balistrieri, 779 F.2d 1191). Baseless personal 11 attacks on a judge, and quotes attributed to a judge which are in fact false or materially inaccurate 12 or misleading will not suffice to trigger the Court’s disqualification (see, Melendres, supra, citing 13 Clemens v United States Dist. Court, 428 F.3d 1175 (9th Cir. 2005) ( quoting Nichols v Alley, 71 14 F3d 347 (10th Cir.1995)). Even if the statements alleging that the undersigned called Plaintiff a 15 “liar” and accused his case of being based on “confusion and lies” were true, which the 16 undersigned denies having said, these remarks would have been judicial remarks made during the 17 course of an in court proceeding and reflective of the Court’s description and observation of the 18 proceedings to that point. 19 As the Supreme Court has explained: 20 [O]pinions formed by the judge on the basis of facts of the current proceedings, or 21 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 during the course of a trial that are critical or 23 disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. 24
25 Liteky v United States, 510 U.S. 540, 555 (1994) (brackets added); see also Drevaleva v United 26 States Dep’t of Veterans Affairs, No. 18-cv-03748 JCS, 2021 WL 2327056, at *2 (N.D. Cal. May 27 11, 2021) (quoting Litkey). 28 1 In relation to Section 144, because Plaintiff did not strictly comply with the 10 day prior 2 filing period as required by Section 144, and there being no legal basis for Plaintiff’s failure to do 3 so, the Court therefore will not accept the truth of the allegations in Plaintiff’s affidavit, nor refer 4 the motion to another judge for determination of its merits pursuant to Section 144. (See, Sibla, 5 624 F.2d at 868). 6 It is also evident from the timing of this recusal motion: 1-which was signed by Plaintiff 7 on Oct. 9, 2023 and docketed on Oct. 23, 2023, ECF No. 99; 2- occurring long after this matter 8 was referred to the undersigned in March of 2020, ECF No. 19, and after Plaintiff had knowledge 9 of said assignment, ECF No. 20; 3- was long after the conclusion of the Tilton matter in March 10 2011; 4- was after the undersigned issued the Finding and Recommendation on September 11, 11 2023 that summary judgment be granted in favor of Defendant and against Plaintiff, ECF No. 95; 12 that Plaintiff’s motion carries a presumption that it was filed for suspect reasons (see, 13 Melendres, supra; E&J Gallo Winery v Gallo Cattle Co, 967 F.2d 1280 (9th Cir, 1992)—and this 14 besides being untimely and almost entirely bereft of specific facts of bias stemming from an 15 extrajudicial source. ( See, generally United States v. Gilboy, 162 F. Supp. 384, 393-94 (M.D. 16 Pa. 1958); 1958 U.S. Dist. Lexis 4109; Franks v Nimmo, 796 F.2d 1230, 1234-35 (10th Cir. 17 1986) (citations omitted); United States v. Sibla, 624 F.2d 864, 868-69 (9th Cir. 1980);. 18 Furthermore, Plaintiff’s claim in the instant motion that “[he] abandoned his [2010 Tilton] 19 civil rights lawsuit . . . based on legal coercion and loss of confidence in the legal justice system” 20 after the undersigned allegedly “called [him] a liar” and told him that he “would never prevail 21 against the State” (ECF No. 99 at 3, ¶ 7) (brackets added) is clearly contradicted by the record. In 22 the Tilton case, Plaintiff did not abandon the matter. It was dismissed when Defendants’ motion 23 for summary judgment was granted. See Tilton, ECF Nos. 116, 129, 130 (findings and 24 recommendations; order and judgment, respectively). Such unsupported claims and statements 25 made by Plaintiff in the instant motion which blatantly contradict the record, severely chip away 26 at Plaintiff’s overall credibility and further support a denial of the Motion to Disqualify. 27 Finally, and of equal importance, Plaintiff fails to point to specific statements made, or 28 events, that have occurred from an extrajudicial source in the instant case which would suggest 1 any bias, prejudice, or lack of impartiality. See generally ECF No. 99; see also 28 U.S.C. 2 455(b)(1)-(5) (establishing disqualification concerns be related to proceeding at hand). Nothing 3 in Plaintiff’s motion reasonably calls into question the Court’s impartiality in this case, nor is 4 there anything in it that establishes personal bias or prejudice of any kind towards Plaintiff during 5 the proceedings in the instant case. See generally 28 U.S.C. § 455(a)-(b)(1); see also 28 U.S.C. § 6 144. 7 Plaintiff does refer to the facts of his current case; he generally argues that he has 8 presented sufficient evidence to defeat Defendants’ motion for summary judgment, and states that 9 the Court’s different findings “can only be attributed to bias and prejudice against [him] and [his] 10 family for political gain.” See ECF No. 99 at 3-4, ¶¶ 9-15 (brackets added). Here again, these 11 claims of bias and prejudice are based on pure conjecture and are wholly unsupported factually. 12 As a result, relief cannot be granted based on them. 13 In conclusion, the Court has considered whether the instant motion identifies any ground 14 upon which disqualification would be warranted, as well as whether there is any other ground for 15 disqualification, and it finds that no such grounds exist. The Court has no deep-seated favoritism 16 or antagonism that would make fair judgment impossible, nor is the Court aware of any 17 circumstances that would cause its impartiality to reasonably be questioned. For these reasons, 18 and for the reasons and law set forth above, Plaintiff’s Motion to Disqualify will be denied and 19 the matter will not be referred to another judge. 20 Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion to Disqualify (ECF No. 21 99) is DENIED as untimely and unsupported. 22 23 IT IS SO ORDERED. 24
25 Dated: November 3, 2023 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 26