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Gregory Sylvester Rideau, Jr. v. Mark D. Greenberg


January 17, 2012


The opinion of the court was delivered by: Honorable Philip S. Gutierrez, United States District Judge



Present: The Honorable Philip S. Gutierrez, United States District Judge

Wendy K. Hernandez Not Present n/a

Deputy Clerk Court Reporter Tape No.

Attorneys Present for Plaintiff(s): Attorneys Present for Defendant(s): Not Present Not Present

Proceedings: (In Chambers) Order DENYING Plaintiff's Motions to Disqualify

Before the Court are Plaintiff Gregory Sylvester Rideau, Jr.'s ("Plaintiff") motions to disqualify United States District Judge George H. Wu and United States Magistrate Judge David T. Bristow. Dkts. # 17, 21. The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the moving papers, the Court DENIES Plaintiff's motions.


Plaintiff, who is currently incarcerated at Calipatria State Prison in Calipatria, California, filed this action for violation of his civil rights. See Compl. at 1. Plaintiff, proceeding pro se, named as defendants Appellate Defenders, Inc., the County of San Bernardino, County Clerk Kristie Richard, Court Reporters Montez, Heishman, L. Millsap, and Meekins, and Mark Greenberg, his court-appointed attorney. Compl. at 2-3. The gravamen of Plaintiff's claims appears to be that defendants conspired to conceal the transcripts from Plaintiff's sentencing hearing. Compl. at 3.

Magistrate Judge Bristow reviewed the Complaint prior to ordering service, in accordance with the Prison Litigation Reform Act of 1995. See id. at 2:15-20; see also 28 U.S.C. § 1915(e)(2). Magistrate Judge Bristow dismissed the Complaint, with leave to amend, for failure to state a federal civil rights claim against Defendants County of San Bernardino and County Clerk Kristie Richard. See Dkt. # 10 at 4:14-16.

Plaintiff thereafter filed a First Amended Complaint. See Dkt. # 12. The First Amended Complaint alleged substantially the same allegations as the original Complaint. See FAC at 3-10. The First Amended Complaint named as Defendants: Court Reporters C. Heishman, L. Millsap, C. Montez, and L. Meekins; California Court of Appeal Justices Art W. McKinster, Betty Ann Richli, and Barton C. Grant; and Plaintiff's court-appointed attorney Mark Greenberg. Magistrate Judge Bristow dismissed the First Amended Complaint, with leave to amend, for failure to state an adequate federal civil rights claim against Defendant Court Reporters Heishman, Millsap, Montez, and Meekins. See Dkt. # 14 at 5:2-6:11. Additionally, Magistrate Judge Bristow found Defendants McKinster, Richli, and Grant were immune from suit under the doctrine of judicial immunity. See id. at 6:13-7:13.

On December 9, 2011, Plaintiff filed an ex parte application with District Court Judge Wu, in which Plaintiff requested Judge Wu appoint a different Magistrate Judge to hear his case.

Dkt. # 13. Plaintiff argued Magistrate Judge Bristow should be disqualified because he had previously issued a report and recommendation on a petition for habeas corpus filed by Plaintiff. at 2. Judge Wu denied the ex parte application. See Dkt. # 15. Judge Wu found that Plaintiff had not met the standard for disqualification because he failed to show any "deep-seated favoritism or antagonism" on the part of Magistrate Judge Bristow. See id. at 2 (quoting United States v. Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997)).

On January 5, 2012, Plaintiff filed a Second Amended Complaint. Dkt. # 16. On the same day, Plaintiff also filed an ex parte application for appointment of "another district and magistrate court judge over this action due to conflict of interest." See Dkt. # 17 at 1. Plaintiff filed another ex parte application on January 11, 2012, entitled "Ex Parte Application Affidavit of Gregory Sylvester Rideau, Jr., the Plaintiff for Support in His Request for Another Magistrate and District Judge in this Action." See Dkt. # 21. Both of Plaintiff's ex parte applications were construed as motions to disqualify and, pursuant to General Order 08-05 and Local Rule 72-5, the motions were referred to United States District Judge Philip S. Gutierrez for consideration.

Dkts. # 20, 22.

Legal Standard

Motions for disqualification are governed by 28 U.S.C. § 144 and 28 U.S.C. § 455. See Pesnell v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). Under 28 U.S.C. § 144, if a party demonstrates 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." 28 U.S.C. § 144. Similarly, 28 U.S.C. § 455 provides that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned" and in proceedings in which "he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 U.S.C. § 455(a), (b)(1).

The substantive standard under these statutes "is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Pesnell, 543 F.3d at 1043. Generally, "a judge's partiality must be shown to be based on information from extra-judicial sources, although sometimes, albeit rarely, predispositions developed during the course of a trial will suffice." F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1144-45 (9th Cir. 2001) (internal quotations and citations omitted); Pesnell, 543 F.3d at 1043. Thus, judicial rulings alone-apart from surrounding comments or accompanying opinions-almost never constitute valid grounds for disqualification. See Liteky v. United States, 510 U.S. 540, 556 (1994).


Plaintiff's ex parte application, memorandum of points and authorities, and affidavit all make similar claims. See Dkts. # 17, 18, 21. First, Plaintiff argues Judge Wu and Magistrate Judge Bristow violated Plaintiff's rights through their decision on Plaintiff's habeas corpus petition. See Dkt. # 17 at 2:6-23. Second, Plaintiff argues that in this civil rights case he has had to amend his complaint twice "without good cause." Id. at 3:1-3.

Plaintiff's arguments fail to meet the threshold for disqualification. The underlying theme in all of Plaintiff's arguments is disagreement with the rulings in both his habeas hearing and his current civil rights action. A judge is not biased or prejudiced for simply having presided over a previous matter involving a party. See Liteky, 510 U.S. at 551 ("Also not subject to deprecatory characterization as 'bias' or 'prejudice' are opinions held by judges as a result of what they learned in earlier proceedings."). Furthermore, Plaintiff's dissatisfaction with the rulings in his current civil rights case are insufficient grounds for disqualification. See id. ("[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion."). Plaintiff fails to present any extra-judicial information to raise any questions of personal bias or prejudice. As Plaintiff fails to provide a reasonable basis for questioning the impartiality of Judge Wu or Magistrate Judge Bristow, the Court DENIES Plaintiff's motions.


Based on the foregoing, the motions for disqualification are DENIED.



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