Reed v. Paramo

• Court: District Court, S.D. California
• Decided: January 5, 2023
• Docket: 3:18-cv-00361
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYCHAL ANDRA REED, Case No.: 18-CV-361 JLS (DEB)

12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. REQUEST FOR JUDGE TO RECUSE HERSELF FROM HIS CASE 14

15 D. PARAMO, et al., (ECF No. 265) 16 Defendants. 17

18 Presently before the Court is Plaintiff Mychal Andra Reed’s (“Plaintiff” or “Reed”) 19 “Request for Judge to Recuse Herself from his Case” (“Mot.,” ECF No. 265). Having 20 carefully considered Plaintiff’s Motion and the law, the Court DENIES the Motion for the 21 reasons that follow. 22 BACKGROUND 23 The factual and procedural background of this matter are familiar to the Parties, and 24 accordingly the Court recites here only those facts relevant to the instant Motion. 25 Plaintiff is a deaf inmate housed at California Correctional Institution. See generally 26 Mot. Ex. B. On May 27, 2022, after significant motion practice over a period of four years, 27 the Court concluded that one portion of one of Plaintiff’s First Amendment retaliation 28 claims against Defendant E. Zendejas survived summary judgment. See generally ECF 1 No. 249. The Court granted Plaintiff an opportunity to move for Court-appointed counsel 2 and set a deadline for the Parties to meet and confer concerning pretrial dates. See id. at 3 28. 4 Instead, Plaintiff moved for reconsideration of the Court’s May 27, 2022 Order. See 5 ECF No. 252. The Court continued the Parties’ meet-and-confer deadline, see ECF No. 6 253, and ultimately denied Plaintiff’s reconsideration request, see ECF No. 255. The Court 7 set new deadlines for Plaintiff to move to appoint counsel and for the Parties to meet and 8 confer. See id. at 5. Plaintiff moved to appoint counsel, see ECF No. 256, but shortly 9 thereafter withdrew his request, see ECF No. 259. The Court “strongly encourage[d] 10 Plaintiff to take advantage of the resource of Court-appointed pro bono counsel,” but also 11 “[wa]s mindful that it is Plaintiff’s prerogative to continue to represent himself if that is his 12 preference.” ECF No. 261 at 1. Accordingly, the Court granted Plaintiff’s request to 13 remain pro se. See id. at 1–2. 14 Plaintiff’s motion additionally sought a transfer to the Eastern District of California 15 and a further extension of the meet-and-confer deadline in light of Plaintiff’s participation 16 in another civil matter. See generally ECF No. 259. The Court granted the extension 17 request and set a new deadline of October 28, 2022, see ECF No. 261 at 2, but denied 18 without prejudice the motion to transfer given that Plaintiff failed to demonstrate either 19 that the case might have been brought in the Eastern District or that Defendant E. Zendejas 20 consented to the transfer, see id. 21 On October 28, 2022, the deadline for the Parties to submit pretrial dates, Plaintiff 22 filed a motion to stay. See ECF No. 263. Plaintiff “request[ed] an indefinite delay in his 23 case” due to “being severely injured on 9/15/22.” Id. at 1. Plaintiff claimed to be 24 physically, mentally, and emotionally incapable of litigating the case, but provided the 25 Court with no details about his injury in his two-page filing. See generally id. Accordingly, 26 the Court denied the request without prejudice and set a new deadline of December 1, 2022, 27 for the Parties to submit proposed pretrial dates. See generally ECF No. 264. The instant 28 Motion followed. See Mot. 1 Plaintiff essentially argues recusal is warranted because: 2 (1) The undersigned has “disregarded the insurmounted [sic] evidence [Plaintiff] 3 presented,” ECF No. 265-1 (“Office of Circuit Exec. Compl.”) at 1; 4 (2) Plaintiff alleges that the foregoing conduct of the undersigned “only encouraged 5 additional retaliatory conduct toward [Plaintiff]” and “directly led to [him] being 6 falsely charged” of injuring another inmate and a prison official. Id. at 2. On 7 the basis of these alleged false charges, Plaintiff was transferred to another 8 prison, “where [he] was seriously injured. (Current injury: broken left eye socket 9 and fractured left facial bone[)].” Id. According to Plaintiff, the undersigned is 10 “partially responsible for [Plaintiff’s] injuries due to negligence and prejudice, 11 by not responding (at all) to [Plaintiff’s] pleas to inte[r]vene via injunction or 12 something lawful (erroneously dismissed ADA claim),” id. at 2–3; 13 (3) The Court sent Plaintiff a Report and Recommendation “late, (October 2019), 2 14 days to the deadline to respond, then denied [Plaintiff’s] request to 15 respond[,] . . . believ[ing] RJDCF phony declarations with no proof,” id. at 3; 16 (4) The undersigned denied Plaintiff’s October 28, 2022 motion to stay, id. at 3–4; 17 and 18 (5) The undersigned denied Plaintiff’s motion to change venue, id. at 4. 19 The Motion further speculates that the undersigned is prejudiced against Plaintiff because 20 he is “a current prisoner and a Black American litigant.” Id. 21 LEGAL STANDARD 22 Under 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate judge of the United 23 States shall disqualify h[er]self in any proceeding in which h[er] impartiality might 24 reasonably be questioned.” Section 144 of the same title provides that a judge must recuse 25 “whenever a party . . . makes and files a timely and sufficient affidavit that the judge . . . 26 has a personal bias or prejudice either against him or in favor of any adverse party.” 28 27 U.S.C. § 144. “Those provisions require recusal where ‘a reasonable person with 28 knowledge of all the facts would conclude that the judge’s impartiality might reasonably 1 be questioned.’” Glick v. Edwards, 803 F.3d 505, 508 (9th Cir. 2015) (quoting United 2 States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986)). Under both provisions, the reviewing 3 court must determine whether the request to recuse is both timely and sufficient. See E. & 4 J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295 (9th Cir. 1992) (holding requests 5 to recuse under section 455(a) must be timely); 28 U.S.C. § 144 (noting affidavits must be 6 “timely and sufficient”). Assuming that the affidavit is timely, Section 144 further requires 7 that the affidavit “be accompanied by a certificate of counsel of record stating that it is 8 made in good faith.” 28 U.S.C. § 144. This requirement “serves a preventative purpose to 9 avoid the filing of frivolous affidavits.” United States v. Bennett, No. SACR 03-25 AHS, 10 2008 WL 2025074, at *2 (C.D. Cal. May 5, 2008). 11 ANALYSIS 12 Plaintiff seeks the undersigned’s recusal pursuant to both 28 U.S.C. §§ 455 and 144. 13 See Mot. at 1. 14 I. Section 144 15 As an initial matter, Plaintiff’s recusal request is procedurally defective, as 16 Plaintiff’s filing is accompanied by neither an affidavit nor a certificate of counsel of record 17 stating that the affidavit is made in good faith. Even had Plaintiff submitted an affidavit 18 and certified that it was made in good faith, “as a pro per plaintiff, [Plaintiff] cannot make 19 the certification.” Bennett, 2008 WL 2025074, at *2 (citing Williams v. N.Y. City Housing 20 Auth., 287 F. Supp. 2d 247, 249 (S.D.N.Y. 2003); Robinson v. Gregory, 929 F. Supp. 334, 21 337–38 (S.D. Ind. 1996)). “Some courts have concluded that an individual proceeding in 22 pro per cannot proceed under Section 144,” while “[o]ther courts have ruled that the 23 affidavit of any counsel who is a member of the bar may sign the certificate of good faith.” 24 Jimena v. UBS AG Bank, No. CV-F-07-367 OWW/SKO, 2010 WL 2650714, at *3 (E.D. 25 Cal. July 1, 2010) (collecting cases). Because Plaintiff has submitted neither an affidavit 26 nor a certification of good faith from a member of the bar, he “cannot proceed pursuant to 27 Section 144.” See id. 28 / / / 1 Second, Plaintiff’s request is substantively insufficient because it fails to allege facts 2 that would lead a reasonable person to conclude that the undersigned has personal bias 3 and/or prejudice toward Plaintiff “stem[ming] from an extrajudicial source.” See United 4 States v. Grinnell Corp., 384 U.S. 563, 583 (1966) (citing Berger, 255 U.S. at 31); see also 5 Studley, 783 F.2d at 939 (“The standard for recusal under 28 U.S.C. §§ 144, 455 is ‘whether 6 a reasonable person with knowledge of all the facts would conclude that the judge’s 7 impartiality might reasonably be questioned.’” (quoting Mayes v. Leipziger, 729 F.2d 605, 8 607 (9th Cir. 1984))). 9 In assessing the sufficiency of a plaintiff’s recusal affidavit, the court determines 10 “whether a reasonable person with knowledge of all the facts would conclude that the 11 judge’s impartiality might reasonably be questioned.” Clemens v. U.S. Dist. Ct. for C.D. 12 Cal., 428 F.3d 1175, 1178 (9th Cir. 2005) (quoting Herrington v. Cnty. of Sonoma, 834 13 F.2d 1488, 1502 (9th Cir. 1987)). “The ‘reasonable person’ in this context means a ‘well- 14 informed, thoughtful observer,’ as opposed to a ‘hypersensitive or unduly suspicious 15 person.’” Id. (quoting In re Mason, 916 F.2d 384, 386 (7th Cir. 1990)). For purposes of a 16 motion to disqualify, “[t]he judge is presumed to be qualified, and thus there is a substantial 17 burden upon the moving party to show that such is not the case.” Reiffin v. Microsoft Corp., 18 158 F. Supp. 2d 1016, 1021–22 (N.D. Cal. 2001) (citing United States v. Zagari, 419 F. 19 Supp. 494, 501 (N.D. Cal. 1976)); accord First Interstate Bank of Ariz., N.A. v. Murphy, 20 Weid & Butler, 210 F.3d 983, 987 (9th Cir. 2000) (“Judicial impartiality is presumed.”) 21 (collecting cases). Consequently, “[t]he affidavit is strictly construed for sufficiency 22 against the party seeking disqualification,” Zagari, 419 F. Supp. at 501 (citing Beland v. 23 United States, 117 F.2d 958, cert. denied, 313 U.S. 985 (1941)), and, “[w]hile the facts set 24 out in the affidavits must be accepted as true, the judge passing on the legal sufficiency of 25 the affidavit is not required to accept the construction placed on them by the movant or the 26 particular affiant,” id.; see also Grinnell Corp., 384 U.S. at 583 (rejecting construction of 27 trial judge’s comment advanced by movant). Finally, “[t]he alleged bias and prejudice to 28 be disqualifying must stem from an extrajudicial source and result in an opinion on the 1 merits on some basis other than what the judge learned from his participation in the case.” 2 Grinnell Corp., 384 U.S. at 583 (citing Berger, 255 U.S. at 31). 3 The Ninth Circuit has articulated the following “helpful, nonexhaustive list of 4 various matters not ordinarily sufficient to require” disqualification: 5 (1) Rumor, speculation, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters; (2) the mere 6 fact that a judge has previously expressed an opinion on a point 7 of law or has expressed a dedication to upholding the law or a determination to impose severe punishment within the limits of 8 the law upon those found guilty of a particular offense; (3) prior 9 rulings in the proceeding, or another proceeding, solely because they were adverse; (4) mere familiarity with the defendant(s), or 10 the type of charge, or kind of defense presented; (5) baseless 11 personal attacks on or suits against the judge by a party; (6) reporters’ personal opinions or characterizations appearing in 12 the media, media notoriety, and reports in the media purporting 13 to be factual, such as quotes attributed to the judge or others, but which are in fact false or materially inaccurate or misleading; and 14 (7) threats or other attempts to intimidate the judge.

15 Clemens, 428 F.3d at 1178–79 (quoting Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 16 1995)). 17 Each of Plaintiff’s grounds for disqualification boil down to Plaintiff’s 18 dissatisfaction with prior Orders in this proceeding and, consequently, are not a proper 19 basis for disqualification; rather, Plaintiff’s remedy is through appeal. See, e.g., Liteky v. 20 United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute 21 a valid basis for a bias or partiality motion. . . . Almost invariably, they are proper grounds 22 for appeal, not for recusal.”); Jimena, 2010 WL 2650714, at *5 (“To the extent Plaintiff’s 23 motion is based on his disagreement with various rulings made in this case, rulings in the 24 action are not a basis for recusal but rather, for appeal at the appropriate time.”); see also 25 McColm v. Kistler, No. C 06-06274 SI, 2007 WL 735771, at *7 (N.D. Cal. Mar. 7, 2007) 26 (“A difference of opinion about the propriety of legal orders is not sufficient to establish 27 impartiality.”) (citing In re Smith, 317 F.3d 918, 930 (9th Cir. 2002)). The Court’s 28 1 determinations as to what evidence is sufficient and/or credible, and the Court’s denial of 2 Plaintiff’s motions to transfer venue and stay, were based on the evidence of record in this 3 matter and the law, and Plaintiff has brought forth no evidence from extrajudicial sources 4 to the contrary. “Thus, [Plaintiff]’s disagreements with Judge [Sammartino]’s rulings and 5 legal conclusions, or her decision to credit evidence submitted by defendants, does not 6 demonstrate the kind of bias that would warrant her recusal.” Waters v. Howard Sommers 7 Towing, No. CV1005296CASAJWX, 2012 WL 13005445, at *2 (C.D. Cal. Jan. 31, 2012). 8 Plaintiff’s threadbare insinuations that the undersigned is prejudiced against him due 9 to Plaintiff’s status as a prisoner and/or on account of his race fail to support 10 disqualification. These contentions are conclusory and wholly unsupported, and 11 accordingly do not merit the granting of Plaintiff’s motion. See, e.g., Williams v. Corcoran 12 State Prison, No. 121CV01009JLTBAMPC, 2022 WL 1093976, at *2 (E.D. Cal. Apr. 12, 13 2022) (denying recusal motion where the plaintiff’s “other conclusory allegations 14 regarding bias,” including allegations of racial bias and bias toward indigent pro se 15 inmates, were “based on nothing more than speculation” and therefore were “legally 16 insufficient to establish a reasonable question as to the undersigned’s impartiality or that a 17 bias or prejudice exists”); Rivera v. Gen. Conf. of Seventh-Day Adventists, No. CIV. 95- 18 1121-AS, 1995 WL 689356, at *1 (D. Or. Nov. 13, 1995) (denying recusal motion based 19 solely upon “an unsupported contention that that ruling was motivated by racial 20 prejudice”); Nolan v. Palmer, No. 3:09-CV-00188-RCJ, 2012 WL 4510977, at *2 (D. Nev. 21 Sept. 28, 2012) (denying recusal motion as groundless where claims of alleged “racial 22 discrimination, education discrimination, and threats” were supported only by the court’s 23 adverse decisions against the plaintiff and therefore not “any ‘extrajudicial source’”), aff’d, 24 585 F. App’x 534 (9th Cir. 2014). 25 Not only do Plaintiff’s individual grounds fail, but, “[s]ince the whole is not greater 26 than the sum of its parts in this matter, the aggregate of these grounds also does [not] 27 provide grounds for disqualification.” See In re Agha, No. 10-16183-A-7, 2013 WL 28 6706001, at *2 (Bankr. E.D. Cal. Dec. 17, 2013); see also United States v. Holland, 519 1 909, 917 (9th Cir. 2008) (“When reviewing the situation as a whole, we cannot 2 conclude that a reasonable person in possession of all the facts would determine that the 3 || district court conducted the proceedings on the basis of anything but the merits of the case. 4 ||Nor can we conclude that the judge had a personal bias or prejudice concerning the 5 ||defendant.”). Accordingly, the Court DENIES Plaintiff's Motion for disqualification 6 || under Section 144. 7 Section 455 8 Because “t]he substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. 9 || § 455 is the same,” United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (quoting 10 || United States v. Hernandez, 109 F.3d 1450,1453 (9th Cir. 1997) (per curiam)), the Court 11 DENIES Plaintiffs Motion to the extent it seeks recusal under Section 455, see supra 12 || Section I; see also, e.g., Yagman, 987 F.2d at 626—27 (affirming district court’s denial of 13 motion under Sections 144 and 455); Thomas v. Beutler, No. 2:10-CV-1300 MCE CKD, 14 WL 3070555, at *3 (E.D. Cal. July 26, 2012) (denying motion for recusal under 15 || Section 455 after determining that motion for disqualification under Section 144 would be 16 || denied). 17 CONCLUSION 18 In light of the foregoing, the Court DENIES Plaintiff's Motion (ECF No. 265). The 19 || Parties SHALL MEET AND CONFER concerning pretrial issues and SHALL FILE a 20 || list of proposed pretrial dates on or before February 10, 2023. 21 IT IS SO ORDERED. 22 ||Dated: January 5, 2023 . tt f Le 23 on. Janis L. Sammartino A United States District Judge 25 26 27 28 8