UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 13, 2012
MAURICE JUNIOUS, ET AL.,
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER DENYING MOTION FOR RECUSAL OF GARY S. AUSTIN MAGISTRATE JUDGE (Doc. 42.)
Adrian Moon ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. This action was initiated by civil Complaint filed on January 20, 2012. (Doc. 1.) On March 23, 3012, Plaintiff consented to the jurisdiction of a United States Magistrate Judge in this action, under 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 16.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
On November 5, 2012, Plaintiff filed a motion for the recusal of Magistrate Judge Gary S. Austin from this action. (Doc. 43.)
II. MOTION FOR RECUSAL
Under 28 U.S.C. § 144, if "the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, ... [he] shall proceed no further...." Pesness v. Arsenault, 543 F.3d 1038, 1043 (9th Cir. 2008). Under 28 U.S.C. § 455(a), "[a]ny ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Id. Under both recusal statutes, the substantive standard is " '[W]hether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.' " Id. (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir.1997)). Under 28 U.S.C. § 144, "[W]henever 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." 28 U.S.C. § 144.
Plaintiff argues that Magistrate Judge Gary S. Austin is prejudiced against Plaintiff and cannot make fair and impartial decisions in this action. Specifically, Plaintiff argues that the Judge showed bias in the order of October 24, 2012, when "after being notified of the motion for pre-lawsuit discovery being filed on October 22, 2012, Magistrate district [sic] Judge Gary S. Austin hastily dismissed the second amended complaint, . . . citing failure to comply to Local Rule 220, thereby, in adversarial misconduct denying the motion to consolidate and the pre lawsuit discovery." (Motion, Doc. 42 at 6 ¶7.) Plaintiff argues that the second amended complaint should not have been dismissed "solely based on one statement, "Plaintiff(s) realleges and incorporate the original verified complaint filed on January 20, 2012," because "Plaintiff received prior approval to state this . . . in the order of March 9, 2012." Id.
Plaintiff's motion for recusal must be denied, because a judge's rulings while presiding over a case do not constitute extra-judicial conduct. See Nilsson, 854 F.2d at 1538, 1548. All of Plaintiff's allegations stem from rulings made by Magistrate Judge Gary S. Austin while presiding over Plaintiff's present case. Plaintiff's disagreement with the Court's rulings is not a legitimate ground for seeking recusal, and Plaintiff's motion shall be denied.
Plaintiff has requested that this motion be decided by "Chief Justice Thelton E. Henderson." (Motion at 6 ¶8.) Thelton E. Henderson, Senior District Judge in the United States District Court for the Northern District of California,*fn1 has no known association with the present case, and Plaintiff cites no authority in support of his request. Therefore, the request is denied.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's motion for the recusal of the undersigned from this action, filed on November 5, 2012, is DENIED.
IT IS SO ORDERED.