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In re Lebbos

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 9, 2008

IN RE: BETSEY WARREN LEBBOS, DEBTOR,
BETSEY WARREN LEBBOS, APPELLANT,
v.
LINDA SCHUETTE, APPELLEE.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter is before the court on appellant Betsey Warren Lebbos' ("appellant") appeal*fn1 of the bankruptcy judge's March 28, 2008 order denying her motion to disqualify the judge from hearing the underlying adversary proceeding.*fn2 The court has considered the parties' opening briefs and appellant's reply brief (Docket #s 13, 15, 21) and hereby affirms the bankruptcy judge's decision.

This court reviews the bankruptcy judge's order for abuse of discretion. Under that standard, unless the record demonstrates a misapplication of law or clearly erroneous factual findings, the bankruptcy judge's decision must be upheld. United States v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000).

Here, appellant has not established either that the bankruptcy judge misapplied the controlling law or made erroneous factual findings. The bankruptcy judge properly applied 28 U.S.C. § 455, providing the grounds for recusal of a judge. Section 455(a) provides: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The test for disqualification under this section is an objective one: "whether a reasonable person with knowledge of all the facts would conclude the judge's impartiality might reasonably be questioned." United States v. Nelson, 718 F.2d 315, 321 (9th Cir. 1983). In this case, the bankruptcy judge properly found that no facts exist which could conceivably give rise to a finding of bias by the judge against appellant.*fn3

Indeed, at best, appellant points only to various adverse, legal rulings by the bankruptcy judge as evidence of his alleged bias toward appellant as a disabled person. However, courts have routinely held that "adverse rulings do not constitute the requisite bias" for purposes of disqualification under Section 455(a). See e.g. Nelson, 718 F.2d at 321 (citing cases) (holding judge's acceptance of an invalid guilty verdict in the defendant's first trial did not necessitate recusal); United States v. Sibla, 624 F.2d 864, 869 (9th Cir. 1980) (emphasizing that recusal under Section 455(a) is only required where the bias or prejudice stems from an "extra-judicial source"). It is simply not a basis for recusal that appellant's various motions in the underlying adversary proceeding, including multiple motions to disqualify the judge,*fn4 to quash subpoenas, and for relief from default judgment, have been denied by the bankruptcy judge.

Moreover, appellant's ad hominem attacks on the bankruptcy judge do not provide a legal basis for recusal. Appellant has no facts whatsoever to support her bizarre assertion that the bankruptcy judge is a "narcissist" who "hates" and "disdains" disabled persons. (See Reply to Appellee's Brief, filed June 25, 2008.) In that regard, this court has not considered those portions of appellant's briefs which are nothing more than a rant of personal invective against Judge Bardwil.

For all of the above reasons, the court cannot find that the bankruptcy judge misapplied the controlling law or made any erroneous factual findings, and thus, the court AFFIRMS the bankruptcy judge's March 28, 2008 order, denying appellant's motion to disqualify the judge. Appellant's appeal is denied, and the Clerk of the Court is directed to close this case.

IT IS SO ORDERED.


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