Pond v. Doe

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 ZACHARY IRWIN POND, CASE NO. 3:21-cv-05339-BJR-JRC 11 Plaintiff, ORDER ON MOTION FOR 12 v. RECUSAL 13 TERRANCE DOE, et al., 14 Defendants. 15 16 This matter is before the undersigned on plaintiff’s motion for the undersigned to recuse 17 himself from the case. Dkt. 71. For the reasons set forth below, the undersigned declines to 18 recuse himself voluntarily and refers the matter to the Chief Judge for consideration. 19 20 DISCUSSION 21 “Any justice, judge, or magistrate judge of the United States shall disqualify himself in 22 any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). 23 A judge also shall disqualify himself where he “has a personal bias or prejudice concerning a 24 party.” Id. § 455(b)(1). Further, “[w]henever a party to any proceeding in a district court makes 1 and files a timely and sufficient affidavit that the judge before whom the matter is pending has a 2 personal bias or prejudice either against him or in favor of any adverse party, such judge shall 3 proceed no further therein, but another judge shall be assigned to hear such proceeding.” 28 4 U.S.C. § 144.

5 Local Civil Rule 3(f) additionally provides that— 6 Whenever a motion to recuse directed at a judge of this court is filed pursuant to 28 U.S.C. § 144 or 28 U.S.C. § 455, the challenged judge will review the 7 motion papers and decide whether to recuse voluntarily. If the challenged judge decides not to voluntarily recuse, he or she will direct the clerk to refer the 8 motion to the chief judge, or the chief judge’s designee. If the motion is directed at the chief judge, or if the chief judge or the chief judge’s designee is 9 unavailable, the clerk shall refer it to the active judge with the highest seniority.

10 Under both §144 and § 455, recusal of a federal judge is appropriate if “a reasonable 11 person with knowledge of all the facts would conclude that the judge’s impartiality might 12 reasonably be questioned.” Yagman v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993) (citation 13 and internal quotation marks omitted). The judge’s impartiality might reasonably be questioned 14 if, “given all the facts of the case[,] there are reasonable grounds for finding that the judge could 15 not try the case fairly, either because of the appearance or the fact of bias or prejudice.” See 16 United States v. Conforte, 624 F.2d 869, 881 (9th Cir. 1980). 17 In Liteky v. United States, 510 U.S. 540 (1994), the United States Supreme Court 18 explained the narrow basis for recusal: 19 [J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. . . . [O]pinions formed by the judge on the basis of facts introduced or 20 events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep 21 seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or 22 even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. 23

24 1 Id. at 555 (citation omitted). 2 Here, plaintiff alleges that the undersigned is biased against him on the basis of adverse 3 rulings. However, this is not an appropriate basis for recusal. Nor has plaintiff identified 4 circumstances evincing bias or the appearance thereof. Plaintiff states that the Court has refused

5 to comply with Fed. R. Civ. P. 17 (as related to suits prosecuted by a guardian on behalf of an 6 incompetent person). Plaintiff also appears to take issue with the Court’s decisions not to 7 appoint counsel to represent him. However, the Court has explained that the exceptional 8 circumstances justifying the appointment of counsel in a civil case are not present in this matter. 9 See Dkts. 27, 37, 56. The Court has also explained that plaintiff has not provided evidence 10 creating a substantial question regarding his competency, particularly in light of his ability to 11 litigate this matter to date. See Dkt. 70, at 2. The Court has further granted plaintiff additional 12 time to respond to the pending summary judgment motion. See Dkt. 70, at 2. 13 14 CONCLUSION

15 Because there is no basis for a voluntary recusal in this instance, the undersigned declines 16 to recuse himself from the matter. However, plaintiff’s motion shall be referred to the Chief 17 Judge for a determination of its merits. LCR 3(e). Accordingly, it is hereby ORDERED that the 18 undersigned DECLINES to recuse voluntarily. Plaintiff’s motion to recuse (Dkt. 71) is 19 REFERRED to Chief Judge Ricardo Martinez for decision and the Clerk of the Court is directed 20 to PLACE this motion on Chief Judge Martinez’s motion calendar. 21 All pending deadlines in this matter are stayed until Judge Martinez rules on the recusal. 22 The Court will enter a scheduling order re-setting the pending deadlines when appropriate. 23 ///

24 1 The Clerk is further directed to SEND plaintiff a copy of this order. 2 Dated this 18th day of May, 2022. A 3 4 J. Richard Creatura Chief United States Magistrate Judge 5

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24