United States v. Newby

Opinion

WESTERN DISTRICT OF WASHINGTON

UNITED STATES OF AMERICA, CASE NO. C18-5978RBL

Plaintiff, ORDER AFFIRMING SECOND ORDER DECLINING TO VOLUNTARILY v. RECUSE

PERCY F. NEWBY, et al.,

Defendants.

This matter is before the Court on Defendant Percy F. Newby’s (“Newby”) Second Demand for Recusal/Disqualification in the Alternative Dismiss This Case. Dkt. #88. The Undersigned previously affirmed an order of the Honorable Ronald D. Leighton, United States District Court Judge, declining to voluntarily recuse himself in this case. Dkt. #38. That order noted that Newby’s request was based on Judge Leighton’s prior rulings, which do not form “sufficient cause for recusal.” United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986); see also Taylor v. Regents of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993) (“To warrant recusal, judicial bias must stem from an extrajudicial source.”). Newby’s second motion fails on both this and additional bases and the Undersigned affirms Judge Leighton’s Order declining to recuse himself (Dkt. #92). Newby’s second motion is premised on his receipt of Plaintiff’s motion to file an over- length brief after Judge Leighton had already granted the requested relief. Dkt. #88. Newby appears to believe that his due process rights were violated because he was not afforded an opportunity to respond to Plaintiff’s motion to file an over-length brief. Id. But, as Judge Leighton partially points out, a motion to file an overlength brief is a same day motion addressed

to the discretion of the court and may not be opposed, except at the court’s request. LCR 7(f). Newby’s second motion points only to actions taken by Judge Leighton in his judicial capacity and, even then, fails to establish an appearance of prejudice. Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1992) (recusal is an objective inquiry concerned with whether there is an appearance of bias); United States v. Conforte, 624 F.2d 869, 881 (9th Cir. 1980). Newby’s motion entirely fails to establish that “a reasonable person with knowledge of all the facts would conclude that the judge’s impartiality might reasonably be questioned.” 28 U.S.C. §§ 144, 455; Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th Cir. 1993). Judge Leighton properly declined to recuse himself.

Accordingly, the Court finds and ORDERS that Judge Leighton’s Order (Dkts. #92) declining to recuse himself is AFFIRMED. The Clerk shall mail a copy of this Order to Defendant Percy F. Newby at his last known address. DATED this 8 day of January 2020.

A RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE