Saddozai v. Carwithen

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SHIKEB SADDOZAI, 11 Case No. 21-cv-01352 BLF (PR) Plaintiff, 12 ORDER DENYING MOTION FOR v. DISQUALIFICATION OR 13 RECUSAL

14 A. CARWITHEN, et al., 15 Defendants. (Docket No. 53) 16

17 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983, based on events that took place at Salinas Valley State 20 Prison (“SVSP”) where he is currently confined. Dkt. No. 1. On August 16, 2022, the 21 Court granted Defendants’ motion to revoke Plaintiff’s in forma pauperis (“IFP”) status; 22 Plaintiff was directed to pay the full filing fee. Dkt. No. 49. When he failed to do so in the 23 time provided, the Court dismissed the matter on September 13, 2022, for failure to pay the 24 filing fee. Dkt. No. 51. Judgment was entered the same day. Dkt. No. 52. 25 Plaintiff has filed a “motion for order to disqualify district court judge pursuant [to] 26 Title 28 U.S.C. §§ 144 and 455,” which the Court construes as a motion for recusal. Dkt. 27 No. 53. Plaintiff asserts that the Undersigned has a “personal bias and prejudice” against 1 plaintiff cannot have a fair and impartial trial and hearing before this judge.” Id. at 2. In 2 an affidavit, Plaintiff alleges that the Undersigned has “indicated a personal bias and 3 prejudice against [him] out of invidious retaliatory and discriminatory animus arising from 4 [his] poverty; imprisonment; and race because [he is] a distinct class made obvious by [his] 5 name, supported by [the Undersigned] making improper remarks and insensitive 6 comments about [him] in response to [his] civil complaint(s), also showing an impartiality 7 in judgment.” Dkt. No. 53-1 at 2. Plaintiff claims that the Undersigned “deliberately and 8 repeatedly” denied his requests for appointment of counsel and forced him to amend his 9 complaint multiple times “as punitive retaliatory tactics due to conflict of interest to 10 impair, impeded, frustrate and make [him] default on [his] civil actions.” Id. at 3-4. 11 Motions to recuse a district court judge fall under two statutes, 28 U.S.C. § 144 and 12 28 U.S.C. § 455. The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. 13 § 455 is the same: Whether a reasonable person with knowledge of all the facts would 14 conclude that the judge’s impartiality might reasonably be questioned. United States v. 15 McTiernan, 695 F.3d 882, 891 (9th Cir. 2012); Yagman v. Republic Ins., 987 F.2d 622, 16 626 (9th Cir. 1993) (citation omitted). Sections 144 and 455 ask whether a reasonable 17 person perceives a significant risk that the judge will resolve the case on a basis other than 18 the merits. Clemens v. United States Dist. Ct. for the Cent. Dist. of Cal., 428 F.3d 1175, 19 1178 (9th Cir. 2005). The reasonable person in this context means a well-informed, 20 thoughtful observer, as opposed to a hypersensitive or unduly suspicious person. Id. 21 As a federal judge is presumed to be impartial, a substantial burden is imposed on 22 the party claiming bias or prejudice to show that this is not the case. See United States v. 23 Zagari, 419 F. Supp. 494, 501 (N.D. Cal. 1976). Here, Plaintiff’s assertions regarding 24 personal bias and prejudice are simply conclusory. The Court does not have nor has ever 25 expressed any “discriminatory animus” against Plaintiff based on his poverty, 26 imprisonment, or race, and no improper remarks have ever been made showing lack of 1 || Plaintiff to amend his complaints were all supported by correct legal authority and proper 2 || analysis, as was the decision to revoke Plaintiff's IFP status. See, e.g., Dkt. Nos. 10, 20, 3 || 43,49. Accordingly, Plaintiff's conclusory assertions are not sufficient to overcome the 4 || presumption that this Court has been fair and impartial in this action. Plaintiff may appeal 5 || the decision to the Ninth Circuit, but otherwise has no basis for moving to recuse the Court 6 || from this matter. The motion for disqualification is DENIED. Dkt. No. 53. 7 This order terminates Docket No. 53. 8 IT IS SO ORDERED. 9 || Dated: _ September 21, 2022 tn) ' BETH LABSON FREEMAN 0 United States District Judge 11 12

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Oo Z 18 19 20 21 22 23 24 Order Denying Motion for Disqualification and Recusal 25 PRO-SE\EJD\CR.18\05558Saddozai_deny.recusal 26 27