1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 LISETTE WILLIAMS, Case No. 3:23-cv-05196-BHS 7 Plaintiff, v. ORDER DECLINING TO RECUSE 8 AND REFERRING PLAINTIFF’S UNITED STATES OF AMERICA, et al., MOTION TO RECUSE 9 Defendants. 10 11 This matter comes before the Court on plaintiff’s filing of Motion to Reassign 12 Case in which they request that Magistrate Judge Theresa L. Fricke recuse herself from 13 deciding whether plaintiff’s application to proceed in forma pauperis (IFP) should be 14 granted for an appeal in this case. Plaintiff argues that Judge Fricke was the presiding 15 Judge in a criminal case where plaintiff was the defendant and has demonstrated bias 16 in this case. Dkt. 4 at 1. Pursuant to 28 U.S.C. § § 144, 455, and United States District 17 Court for the Western District of Washington Local Civil Rule, LCR 3(f), the Court should 18 hold that the undersigned Magistrate Judge is not required to recuse. 19 On March 10, 2023, plaintiff filed an application to proceed in forma pauperis and 20 submitted a complaint; the undersigned reviewed the complaint and ordered, prior to 21 service on the defendants, that plaintiff show cause why the case should not be 22 dismissed without prejudice or, in the alternative, file an amended complaint – in 23 accordance with 28 U.S.C. § 1915(e)(2). Dkt. 3, Order to Show Cause. 24 1 A judge of the United States shall disqualify herself from a proceeding in which 2 her impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a); United States v. 3 Carey, 929 F.3d 1092, 1104 (9th Cir. 2019). In addition, a judge of the United States 4 shall disqualify herself under circumstances where she has a personal bias or prejudice
5 concerning a party, or personal knowledge of disputed evidentiary facts concerning the 6 proceeding. 28 U.S.C. § 455(b)(1). Normally, a judge should not be recused when the 7 only basis for the motion to recuse is that the judge made adverse rulings in the case 8 where the party seeks disqualification of the judge. Liteky v. U.S., 510 U.S. 540, 555 9 (1994); In re Marshall, 721 F.3d 1032, 1041-1045 (9th Cir. 2013). 10 Pursuant to 28 U.S.C. § 144, a judge shall proceed no further “whenever a party 11 to any proceeding in a district court files a timely and sufficient affidavit that the judge 12 before whom the matter is pending has a personal bias or prejudice either against [the 13 filing party] or in favor of any adverse party.” In addition, 28 U.S.C. § 455 reiterates the 14 “grounds for recusal set forth in § 144 . . . [and] (1) made them applicable to all justices,
15 judges, and magistrates (and not just district judges), and (2) placed the obligation to 16 identify the existence of those grounds upon the judge himself, rather than requiring 17 recusal only in response to a party affidavit.” Liteky, at 548 (emphasis in original). 18 Under both §144 and § 455, recusal of a federal judge is appropriate for either 19 actual bias or appearance of bias, if “a reasonable person with knowledge of all the 20 facts would conclude that the judge’s impartiality might reasonably be questioned.” 21 Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th Cir.1993). This is an objective 22 test. Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991). 23
24 1 United States District Court for the Western District of Washington Local Civil 2 Rule, LCR 3(f) additionally provides that: 3 (f) Motions to Recuse 4 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 5 review the motion papers and decide whether to recuse voluntarily. If the challenged judge decides not to voluntarily recuse, he or she will direct the 6 clerk to refer the 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 7 judge’s designee is unavailable, the clerk shall refer it to the active judge with the highest seniority. 8 Courts have held that, generally, personal bias or prejudice under § 144 or § 455 9 must stem from an extrajudicial source. Liteky, 510 U.S. at 544 (1994); U.S. v. 10 Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997). Thus “judicial rulings alone almost 11 never constitute a valid basis for a bias or partiality motion” because they cannot show 12 reliance upon an extrajudicial source. Liteky, at 555. Further, “opinions formed by the 13 judge on the basis of facts introduced or events occurring in the course of the current 14 proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality 15 motion unless they display a deep-seated favoritism or antagonism that would make fair 16 judgment impossible.” Id. 17 Thus, plaintiff would need to demonstrate bias stemming from an extrajudicial 18 source or a deep-seated favoritism to provide grounds for recusal under § 144 or § 455. 19 See U.S. v. Sibla, 624 F.2d 864, 868-869 (9th Cir. 1980) (court should initially determine 20 whether the facts alleged in the affidavit submitted by the party seeking recusal are 21 legally sufficient to support the motion, and refer the motion to another judge to 22 determine the merits). The two statutes have the same substantive test, but they are not 23 redundant. Sibla at 867-868. There are procedures specified for the parties when filing a 24 1 motion under §144, but no procedures are set forth in § 455 – that provision is self- 2 enforcing for the judge. Id. 3 Plaintiff did not present evidence of any extrajudicial source for the undersigned 4 Magistrate Judge’s alleged bias. Nor does plaintiff allege any facts or instances
5 demonstrating a “deep-seated bias” that would make fair judgment impossible. Further, 6 plaintiff makes conclusory allegations, which “are insufficient to support a claim of bias 7 or prejudice such that recusal is required.” U.S. v. $292,888.04 in U.S. Currency, 54 8 F.3d 564, 566 (9th Cir. 1995) (internal quotations omitted). 9 The undersigned has done nothing that would create the appearance of bias, nor 10 does the undersigned have any reason to be partial to one side or the other in this 11 matter. Due process requires that even if a judge has no actual bias, and “would do 12 their very best to weigh the scales of justice equally between contending parties,” the 13 judge must also satisfy “the appearance of justice.” In re Murchison, 349 U.S. 133, 136 14 (1955), quoting, Offutt v.
Free access — add to your briefcase to read the full text and ask questions with AI
1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 LISETTE WILLIAMS, Case No. 3:23-cv-05196-BHS 7 Plaintiff, v. ORDER DECLINING TO RECUSE 8 AND REFERRING PLAINTIFF’S UNITED STATES OF AMERICA, et al., MOTION TO RECUSE 9 Defendants. 10 11 This matter comes before the Court on plaintiff’s filing of Motion to Reassign 12 Case in which they request that Magistrate Judge Theresa L. Fricke recuse herself from 13 deciding whether plaintiff’s application to proceed in forma pauperis (IFP) should be 14 granted for an appeal in this case. Plaintiff argues that Judge Fricke was the presiding 15 Judge in a criminal case where plaintiff was the defendant and has demonstrated bias 16 in this case. Dkt. 4 at 1. Pursuant to 28 U.S.C. § § 144, 455, and United States District 17 Court for the Western District of Washington Local Civil Rule, LCR 3(f), the Court should 18 hold that the undersigned Magistrate Judge is not required to recuse. 19 On March 10, 2023, plaintiff filed an application to proceed in forma pauperis and 20 submitted a complaint; the undersigned reviewed the complaint and ordered, prior to 21 service on the defendants, that plaintiff show cause why the case should not be 22 dismissed without prejudice or, in the alternative, file an amended complaint – in 23 accordance with 28 U.S.C. § 1915(e)(2). Dkt. 3, Order to Show Cause. 24 1 A judge of the United States shall disqualify herself from a proceeding in which 2 her impartiality “might reasonably be questioned.” 28 U.S.C. § 455(a); United States v. 3 Carey, 929 F.3d 1092, 1104 (9th Cir. 2019). In addition, a judge of the United States 4 shall disqualify herself under circumstances where she has a personal bias or prejudice
5 concerning a party, or personal knowledge of disputed evidentiary facts concerning the 6 proceeding. 28 U.S.C. § 455(b)(1). Normally, a judge should not be recused when the 7 only basis for the motion to recuse is that the judge made adverse rulings in the case 8 where the party seeks disqualification of the judge. Liteky v. U.S., 510 U.S. 540, 555 9 (1994); In re Marshall, 721 F.3d 1032, 1041-1045 (9th Cir. 2013). 10 Pursuant to 28 U.S.C. § 144, a judge shall proceed no further “whenever a party 11 to any proceeding in a district court files a timely and sufficient affidavit that the judge 12 before whom the matter is pending has a personal bias or prejudice either against [the 13 filing party] or in favor of any adverse party.” In addition, 28 U.S.C. § 455 reiterates the 14 “grounds for recusal set forth in § 144 . . . [and] (1) made them applicable to all justices,
15 judges, and magistrates (and not just district judges), and (2) placed the obligation to 16 identify the existence of those grounds upon the judge himself, rather than requiring 17 recusal only in response to a party affidavit.” Liteky, at 548 (emphasis in original). 18 Under both §144 and § 455, recusal of a federal judge is appropriate for either 19 actual bias or appearance of bias, if “a reasonable person with knowledge of all the 20 facts would conclude that the judge’s impartiality might reasonably be questioned.” 21 Yagman v. Republic Insurance, 987 F.2d 622, 626 (9th Cir.1993). This is an objective 22 test. Preston v. United States, 923 F.2d 731, 734 (9th Cir. 1991). 23
24 1 United States District Court for the Western District of Washington Local Civil 2 Rule, LCR 3(f) additionally provides that: 3 (f) Motions to Recuse 4 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 5 review the motion papers and decide whether to recuse voluntarily. If the challenged judge decides not to voluntarily recuse, he or she will direct the 6 clerk to refer the 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 7 judge’s designee is unavailable, the clerk shall refer it to the active judge with the highest seniority. 8 Courts have held that, generally, personal bias or prejudice under § 144 or § 455 9 must stem from an extrajudicial source. Liteky, 510 U.S. at 544 (1994); U.S. v. 10 Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997). Thus “judicial rulings alone almost 11 never constitute a valid basis for a bias or partiality motion” because they cannot show 12 reliance upon an extrajudicial source. Liteky, at 555. Further, “opinions formed by the 13 judge on the basis of facts introduced or events occurring in the course of the current 14 proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality 15 motion unless they display a deep-seated favoritism or antagonism that would make fair 16 judgment impossible.” Id. 17 Thus, plaintiff would need to demonstrate bias stemming from an extrajudicial 18 source or a deep-seated favoritism to provide grounds for recusal under § 144 or § 455. 19 See U.S. v. Sibla, 624 F.2d 864, 868-869 (9th Cir. 1980) (court should initially determine 20 whether the facts alleged in the affidavit submitted by the party seeking recusal are 21 legally sufficient to support the motion, and refer the motion to another judge to 22 determine the merits). The two statutes have the same substantive test, but they are not 23 redundant. Sibla at 867-868. There are procedures specified for the parties when filing a 24 1 motion under §144, but no procedures are set forth in § 455 – that provision is self- 2 enforcing for the judge. Id. 3 Plaintiff did not present evidence of any extrajudicial source for the undersigned 4 Magistrate Judge’s alleged bias. Nor does plaintiff allege any facts or instances
5 demonstrating a “deep-seated bias” that would make fair judgment impossible. Further, 6 plaintiff makes conclusory allegations, which “are insufficient to support a claim of bias 7 or prejudice such that recusal is required.” U.S. v. $292,888.04 in U.S. Currency, 54 8 F.3d 564, 566 (9th Cir. 1995) (internal quotations omitted). 9 The undersigned has done nothing that would create the appearance of bias, nor 10 does the undersigned have any reason to be partial to one side or the other in this 11 matter. Due process requires that even if a judge has no actual bias, and “would do 12 their very best to weigh the scales of justice equally between contending parties,” the 13 judge must also satisfy “the appearance of justice.” In re Murchison, 349 U.S. 133, 136 14 (1955), quoting, Offutt v. United States, 348 U.S. 11,13 (1954). In this case, a
15 reasonable person with knowledge of all the facts would not conclude that the judge’s 16 impartiality might reasonably be questioned. United States v. Carey, 929 F.3d at 1104. 17 Considering the objective test, the undersigned finds that Ms. Williams’ Motion to 18 Reassign Case is legally insufficient, and because there is no merit to the motion to 19 recuse, the undersigned declines to recuse herself from the referral of this IFP motion 20 by Judge Settle. 21 CONCLUSION 22 There is no reasonable basis for recusal in this instance. In accordance with LCR 23 3(f), plaintiff’s motion shall be referred to the Chief Judge for a determination of its
24 1 merits. Accordingly, the undersigned DECLINES to recuse voluntarily. Plaintiff’s motion 2 for recusal of the undersigned is REFERRED to Chief Judge David G. Estudillo for 3 decision and the Clerk of the Court is directed to place the motion for the recusal of the 4 undersigned on Chief Judge Estudillo’s motion calendar.
5 The IFP motion currently pending before the Court is hereby STAYED pending 6 resolution of the recusal issue. The Clerk of the Court shall send a copy of this Order to 7 plaintiff. 8 9 Dated this 8th day of May, 2023. 10 11 12 A
Theresa L. Fricke 13 United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24