Plaintiffs, proceeding pro se, filed a motion for a temporary restraining order ("TRO") in the above-captioned action on November 1, 2012. (ECF 1.) Plaintiffs sought to halt the implementation of Davis Joint School District Measure E ("measure"), which had yet to be voted on, based upon the Federal Plain Writing Act, the Equal Protection Clause of the Fourteenth Amendment, and California Government Code 6219. (Id. ¶ 1.) This court deferred ruling on the TRO until the measure was voted on, as plaintiffs sought to enjoin only the measure's implementation. On November 7, 2012, after the measure was approved, this court denied plaintiffs' motion without prejudice for failing to comply with Local Rule 231(c). (ECF 4.) Plaintiffs had not filed all of the required documents, including a brief on all relevant legal issues, so that this court could determine whether plaintiffs merited the requested relief. The court granted plaintiffs leave to renew their motion by filing the required documents within one week, by November 15, 2012. (Id.) Invoking 28 U.S.C. § 144 and § 455, plaintiffs responded with this motion to disqualify the undersigned on November 9, 2012. (ECF 8.)
Recusal under § 144 and § 455 is subject to the same standard: "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." United States v. Hernandez, 109 F.3d 1450, 1453-54 (9th Cir. 1997) (internal quotations and citations omitted). "[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion." Liteky v. United States, 510 U.S. 540, 555 (1994); see also United States v. Johnson, 610 F.3d 1138, 1148 (9th Cir. 2010) ("Adverse findings do not equate to bias."). This is because the alleged bias generally must "stem from an 'extra-judicial source'" to be disqualifying. Hernandez, 109 F.3d at 1454 (quoting Liteky v. United States, 510 U.S. 540, 554-56 (1994)). In the absence of an extra-judicial source, recusal is required only upon a showing of "a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555. The law provides that the decision regarding recusal is made by the judge whose recusal is sought. See, e.g., 28 U.S.C. § 455 ("Any . . . judge . . . shall disqualify himself in any proceeding in which his impartiality may reasonably be questioned."); United States v. Carolina Cas. Ins. Co., No. 08-CV-01673-H KSC, 2012 WL 1229885 (S.D. Cal. Apr. 12, 2012) (the judge whose recusal was sought under § 144 and § 455 ruled her recusal was not required).
Plaintiffs contend the denial of their motion constitutes evidence of bias and prejudice. Plaintiffs aver that they filed only a complaint against defendants and had only begun the process of following this district's TRO procedures. (ECF 8 ¶¶ 3-4.) The complaint filed on November 1, 2012, plaintiffs contend, is only a framework for a TRO, should one become necessary. (Id. ¶ 3.) Additionally, plaintiffs argue that this court ruled on their motion before the official results for the ballot measure had issued. (Id. ¶ 4.) This court also set a one-week deadline for a renewal TRO; plaintiffs find this deadline impossible to meet as they intend to ask defendants to stipulate to a TRO or to accept an alternative resolution. (Id. ¶ 6.) Therefore, plaintiffs aver the denial of their "motion" - a filing plaintiffs intended to be a "framework" complaint - was premature and unfair. Even if this court's denial of plaintiffs' "motion" was a misunderstanding or a technical mistake, plaintiffs argue, any reasonable person would still find this judge to be biased. (Id. ¶ 5.) Therefore, plaintiffs request that she be disqualified under 28 U.S.C. § 144 and § 455. (Id.)
This court's November 7, 2012 denial of plaintiffs' TRO filing would not cause a reasonable person to question the undersigned's impartiality. See Hernandez, 109 F.3d at 1453-54. Rather, a reasonable person would observe that plaintiffs filed a document entitled "Complaint for Temporary Restraining Order . . . ," that was docketed as a motion for a TRO. A reasonable person would also note plaintiffs' request for this court to issue a "temporary, preliminary, and permanent injunction," which this court construed as a motion for a TRO. (ECF 1 at 13.) Plaintiffs' only evidence of bias is this court's ruling, which alone cannot equate to bias. Liteky, 510 U.S. at 554; Johnson, 610 F.3d at 1148. Plaintiffs' averment now that they informed the court that their November 1, 2012 document was only a complaint, not a motion for a TRO, also does not serve as evidence of bias, as the undersigned never learned of this direction. (ECF 8 ¶ 3.) Having now received this clarification, the court will vacate its prior order addressing a TRO. Plaintiffs have shown neither an extra-judicial source of bias nor that the undersigned displayed "a deep-seated favoritism or antagonism that would make fair judgment impossible." Liteky, 510 U.S. at 555.
Plaintiffs' motion for disqualification is DENIED. Plaintiffs' November 1, 2012 filing will be construed as the complaint in this action. This court's prior denial of a TRO and November 15, 2012 deadline for a renewal TRO is VACATED. Plaintiffs may file a TRO motion complying with Local Rule 231 in the future if they wish.
UNITED STATES DISTRICT JUDGE
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