(PC) Spencer v. Jasso

District Court, E.D. California·Decided August 7, 2023·No. 1:20-cv-00909·Unknown

Opinion

1 2 3 4

8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

11 EDWARD B. SPENCER, 1:20-cv-00909-ADA-GSA-PC

12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION TO DISQUALIFY 13 vs. MAGISTRATE JUDGE

14 JASSO, et al., (ECF No. 27.)

15 Defendants.

19 20 I. BACKGROUND 21 Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se and in forma 22 pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint 23 commencing this action on June 30, 2020. (ECF No. 1.) This case now proceeds with the First 24 Amended Complaint filed on October 18, 2021, against defendant J. Jasso (“Defendant”) for 25 retaliation, withholding Plaintiff’s mail, and violation of due process. (ECF Nos. 12, 17.) 26 On June 28, 2023, Plaintiff filed a motion to disqualify Magistrate Judge Gary S. Austin 27 from participating in this case. (ECF No. 27.) Defendant has not filed an opposition. (Court 28 Record.) 1 II. DISQUALIFICATION OF MAGISTRATE JUDGE - 28 U.S.C. § 455 AND 2 28 U.S.C. § 144 3 A. Legal Standards 4 The procedural requirements for a motion to disqualify under 28 U.S.C. § 455 are 5 different from those under 28 U.S.C. § 144. Brew v. Fehderau, No. 1:17-cv-00681-AWI-EPG- 6 PC, 2017 U.S. Dist. LEXIS 168135, at *2-3 (E.D. Cal. Oct. 11, 2017) (citing United States v. 7 Sibla, 624 F.2d 864, 867 (9th Cir. 1980)). Under 28 U.S.C. § 455, a judge “shall disqualify 8 himself in any proceeding in which his impartiality might reasonably be questioned,” including 9 under circumstances where “he has a personal bias or prejudice concerning a party.” Id. (quoting 10 see 28 U.S.C. § 455(a), (b)(1)). A motion under section 455 is addressed to, and must be decided 11 by, the very judge whose impartiality is being questioned. Id. (citing Bernard v. Coyne, 31 F.3d 12 842, 843 (9th Cir. 1994)). “Section 455 clearly contemplates that decisions with respect to 13 disqualification should be made by the judge sitting in the case, and not by another 14 judge.” Id. (quoting Bernard, 31F. 3d at 843 (quoting United States v. Balistrieri, 779 F.2d 1191, 15 1202 (7th Cir. 1985))). “[S]ection 455 includes no provision for referral of the question of recusal 16 to another judge; if the judge sitting on the case is aware of grounds for recusal under section 17 455, that judge has a duty to recuse himself or herself.” Id. (quoting Sibla, 624 F.2d at 868). On 18 the other hand, “in the absence of a legitimate reason to recuse himself, a judge should participate 19 in cases assigned.” Id. (quoting United States v. Holland, 519 F.3d 909, 912 (9th Cir. 2008)). 20 Federal law provides that “[a]ny justice, judge, or magistrate judge of the United States shall 21 disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 22 Id. (quoting 28 U.S.C. § 455(a)). Section (b) of that statute sets forth a number of additional 23 grounds for disqualification, including where the judge “has a personal bias or prejudice 24 concerning a party,” “personal knowledge of disputed evidentiary facts concerning the 25 proceeding,” where “in private practice he served as lawyer in the matter in controversy,” or “has 26 been a material witness concerning it.” Id. (quoting § 455(b)). 27 28 U.S.C. § 144 provides: 28 1 “Whenever a party to any proceeding in a district court makes and files a 2 timely and sufficient affidavit that the judge before whom the matter is pending 3 has a personal bias or prejudice either against him or in favor of any adverse party, 4 such judge shall proceed no further therein, but another judge shall be assigned to 5 hear such proceeding. 6 The affidavit shall state the facts and the reasons for the belief that bias or 7 prejudice exists, and shall be filed not less than ten days before the beginning of 8 the term at which the proceeding is to be heard, or good cause shall be shown for 9 failure to file it within such time. A party may file only one such affidavit in any 10 case. It shall be accompanied by a certificate of counsel of record stating that it is 11 made in good faith.” 12 A motion under section 144 is initially addressed to the judge whose impartiality is being 13 questioned. Brew, 2017 U.S. Dist. LEXIS 168135, at *4 (citing see United States v. Azhocar, 14 581 F.2d 735, 738 (9th Cir. 1978)). “Section 144 expressly conditions relief upon the filing of a 15 timely and legally sufficient affidavit.” Id. (quoting Sibla, 624 F.2d at 867). “Only after the legal 16 sufficiency of the affidavit is determined does it become the duty of the judge to ‘proceed no 17 further’ in the case” and another judge is assigned to hear the proceeding. Id. (quoting Azhocar, 18 581 F.2d at 738). An affidavit is sufficient where it “specifically alleges facts that fairly support 19 the contention that the judge exhibits bias or prejudice directed toward a party that stems from 20 an extrajudicial source.” Id. (quoting Sibla, 624 F.2d at 868). 21 Nevertheless, “[t]he test for personal bias or prejudice in section 144 is identical to that 22 in section 455(b)(1).” Id. (quoting Sibla at 867). In either case, the substantive standard is 23 “[w]hether a reasonable person with knowledge of all the facts would conclude that the judge’s 24 impartiality might reasonably be questioned.” Id. (quoting United States v. Hernandez, 109 F.3d 25 1450, 1453 (9th Cir. 1997)). The bias must arise from an extrajudicial source and cannot be based 26 solely on information gained in the course of the proceedings. Id. (citing Hernandez at 1453 27 (citing Liteky v. United States, 510 U.S. 540, 554-56, 114 S. Ct. 1147, 127 L. Ed. 2d 474 28 (1994))). “Judicial rulings alone almost never constitute a valid basis for a bias or partiality 1 motion.” Id. (quoting Liteky, 510 U.S. at 555). “In and of themselves . . . they cannot possibly 2 show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the 3 degree of favoritism or antagonism required . . . when no extrajudicial source is involved.” Id. 4 (quoting Liteky at 555.) 5 B.