Puckett v. Dyer

Opinion

10 11 JOSEPH PUCKETT DYER, Case No. 1:22-cv-00750-KES-HBK (PC)

12 Plaintiff, ORDER DENYING CONSTRUED MOTION SEEKING RECUSAL OF MAGISTRATE 13 v. JUDGE 14 JERRY DYER, et al., (Doc. No. 56) 15 Defendants.

16 17 On December 12, 2024, pro se Plaintiff filed a pleading titled “Reassignment of Case by 18 Court Clerk” in this closed case. (Doc. No. 56). Therein, Plaintiff alleges that the undersigned 19 knows Defendant Dyer or should know him, requests reassignment of this case, and 20 disqualification of the undersigned. (See generally, Id.). The court construes the motion as a 21 motion seeking recusal of the undersigned.1 The motion attaches various orders, including the 22 court’s Order Setting Mandatory Scheduling Conference with attachments and the district court’s 23 November 25, 2024 order adopting the undersigned’s findings and recommendations issued on 24 November 13, 2023. (Doc. No. 56 at 3-31). 25

26 1 A motion’s “nomenclature is not controlling.” Miller v. Transamerican Press, Inc., 709 F.2d 524, 527 (9th Cir. 1983) (quoting Sea Ranch Ass’n v. Cal. Coastal Zone Conservation Comm’ns, 537 F.2d 1058, 27 1061 (9th Cir. 1976)). Instead, we “construe [the motion], however styled, to be the type proper for the relief requested.” Id. 28 1 At the outset, this case is closed. (See Judgment entered on November 25, 2024, Doc. No.

2 54). Nonetheless, the undersigned will address the law for purposes of ruling on the construed

3 motion.

4 Motions for recusal are governed by 28 U.S.C. §§ 144 and 455. In pertinent part, 28

5 U.S.C. § 144 provides as follows:

6 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 7 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 8 proceeding.

9 Alternat ively, 28 U.S.C. § 455 provides that a “magistrate judge shall disqualify [herself] in any 10 proceeding in which [her] impartiality might reasonably be questioned” or “[w]here [she] has a 11 personal bias or prejudice concerning a party.” 28 U.S.C. §§ 455(a). 12 The test for personal bias or prejudice under sections 144 and 455 are identical and the 13 same standard is applied to both sections. United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 14 1980). “The standard for judging the appearance of partiality requiring recusal under 28 U.S.C. § 15 455 is an objective one and involves ascertaining ‘whether a reasonable person with knowledge 16 of all the facts would conclude that the judge’s impartiality might reasonably be questioned.’” 17 United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008); Preston v. United States, 923 F.2d 18 731, 734 (9th Cir. 1991) (citations omitted). “The standard “‘must not be so broadly construed 19 that it becomes, in effect, presumptive, so that recusal is mandated upon the merest 20 unsubstantiated suggestion of personal bias or prejudice.’” Holland, 519 F.3d at 913. 21 Recusal under 28 U.S.C. § 144 is only required where the prejudice or bias of the judge is 22 both personal and extra-judicial. United States v. Carignan, 600 F.2d 762, 763 (9th Cir. 1979). 23 For the alleged bias and prejudice to be disqualifying, it must stem from an extrajudicial source 24 other than what the judge learned from his participation in the case. United States v. Grinnell 25 Corp., 384 U.S. 563, 583 (1966). The source of the bias must be extra-judicial because the 26 recusal statutes were “never intended to enable a discontented litigant to oust a judge because of 27 adverse rulings made. . ..” Ex parte Am. Steel Barrel Co., 230 U.S. 35, 44 (1913). 28 Plaintiff does not include an affidavit contemplated under § 144. Thus, the Court 1 | considers the motion as filed under § 455. Section 455 requires a party to show more than an 2 | “unsubstantiated suggestion of personal bias or prejudice.” Holland, 519 F.3d at 913. Otherwise, 3 || ajudge could recuse herself “for any reason or no reason at all; we could pick and choose our 4 | cases, abandoning those that we find difficult, distasteful, inconvenient or just plain boring.” Jd. 5 | 912. In the absence of a legitimate reason to disqualify herself, ““a judge should participate in 6 || cases assigned.” Jd. (citations omitted). 7 Although not necessary, the undesigned denies knowing Defendant Dyer. It appears that 8 | the basis of Plaintiff's request stems from the undersigned’s issuance of the findings and 9 | recommendations that were adopted by the district court. This judicial action does not justify 10 | recusal of the undersigned under either § 144 or § 455. The court finds no basis for recusing 11 | herself in this action. 12 Accordingly, it is hereby ORDERED: 13 Plaintiff's construed motion for recusal of the undersigned magistrate judge (Doc. No. 56) 14 | is DENIED. 15 '© | Dated: _ December 19, 2024 Mihaw. Mh. Bareh Zaskth 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE

19 20 21 22 23 24 25 26 27 28