The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
This order addresses an allegation of "judicial bias" on the part of the undersigned, asserted by plaintiff in his objections to an order and proposed findings and recommendations entered by the undersigned.*fn1 The undersigned broadly construes plaintiff's allegation of bias as a request that the undersigned disqualify himself from presiding over this action, and denies such request.
On July 13, 2011, the undersigned entered an order and proposed findings and recommendations in this action, which recommended the dismissal of plaintiff's claims, some with prejudice and others with leave to amend (Dkt. No. 22). On July 27, 2011, plaintiff filed objections to the proposed findings and recommendations (Dkt. No. 23). On September 6, 2011, United States District Judge Garland E. Burrell, Jr. adopted the proposed findings and recommendations in full and ordered plaintiff to file a Second Amended Complaint within 30 days of the date of that order (Dkt. No. 25).
Plaintiff's objections to the now-adopted findings and recommendations include one allegation of "judicial bias" on the part of the undersigned. Specifically, plaintiff's objection "No. 1" states:
Plaintiff objects to that portion of Magistrate Newman's July 13, 2011 Findings and Recommendations which reference the Court's admonishment of Plaintiff with respect to the claims pled against Defendants Elaine Van Beveren and the Law Offices of Elaine Van Beveren. See, Findings and Recommendations, P. 18; 11-15.
The basis for Plaintiff's objection is that the Court's admonishment of Plaintiff tends to reflect judicial bias against Plaintiff, who is acting as his own counsel in this matter, and would tend to have a chilling effect upon Plaintiff's ability and right to bring forth all meritorious -- or potentially meritorious -- claims against the Van Beveren Defendants in this matter.
(Objections to F&Rs at 1-2.) The portion of the order and findings and recommendations referred to in plaintiff's objection actually relates to the screening of plaintiff's claims against defendant County of Sacramento, not the Van Beveren Defendants, and states:
For the reasons stated above, the undersigned dismisses all of plaintiff's claims against the County pursuant to the court's screening authority. However, plaintiff is granted leave to file a further amended complaint that attempts to cure the deficiencies noted in regards to plaintiff's claims against the County. However, as the undersigned admonished plaintiff at the hearing on the Van Beveren Defendants' motion to dismiss, plaintiff should only re-allege claims against the County if he concludes, after assessing the facts of his case and researching the law including the authorities referred to here, that he can state a plausible Section 1983 claim against the County.
(Order and Findings and Recommendations, July 13, 2011, at 18:8-15.)
Plaintiff has not formally moved to disqualify the undersigned or met certain procedural requirements attendant to such a request. However, out of an abundance of caution, the undersigned construes plaintiff's allegation of "judicial bias" as a request that the undesigned disqualify himself from presiding over this action.
Pursuant to 28 U.S.C. § 144, a party may file a "timely and sufficient affidavit" seeking to preclude the assigned judge from presiding over the matter any further as a result of "a personal bias or prejudice" as to a party in the action. Section 144 provides, in its entirety:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
28 U.S.C. § 144. Plaintiff has not filed a "timely and sufficient affidavit," and the Ninth Circuit Court of Appeals has held that "Section 144 expressly conditions relief upon the filing of a timely and legally sufficient affidavit." ...