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Moon v. Junious

United States District Court, Ninth Circuit

May 22, 2013

ADRIAN MOON, Plaintiff,
M. JUNIOUS, et al., Defendants.


GARY S. AUSTIN, Magistrate Judge.


Adrian Moon ("Plaintiff") is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. On March 23, 2012, Plaintiff consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c), and no other parties have appeared in this action. (Doc. 16.) On March 26, 2013, this case was dismissed by Magistrate Judge Gary S. Austin based on Plaintiff's failure to comply with a court order. (Doc. 54.)

On May 9, 2013, Plaintiff filed a motion for the recusal of Magistrate Judge Gary S. Austin under 28 U.S.C. §§ 144, 351(a), and 455(a). (Doc. 62.)


A. Legal Standards

1. 28 U.S.C. § 144, 28 U.S.C. § 455

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; see Pesnell v. Arsenault , 543 F.3d 1038, 1043 (9th Cir. 2008); U.S. v. Johnson , 610 F.3d 1138, 1147 (9th Cir. 2010). Section 144 also provides that "[t]he affidavit shall state the facts and the reasons for the belief that bias and prejudice exists, ... [and a] party may only file one such affidavit in any case." United States v. Sibla , 624 F.2d 864, 867 (9th Cir. 1980). Section 144 expressly conditions relief upon the filing of a timely and legally sufficient affidavit. Id . (citing inter alia United States v. Azhocar , 581 F.2d 735, 738-40 (9th Cir. 1978), cert. denied 440 U.S. 907 (1979). "If the judge to whom a timely motion is directed determines that the accompanying affidavit specifically alleges facts stating grounds for recusal under section 144, the legal sufficiency of the affidavit has been established, and the motion must be referred to another judge for a determination of its merits." Id . (citing Azhocar , 581 F.2d at 738).

Under 28 U.S.C. § 455(a), "[a]ny... judge... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Pesnell , 543 F.3d at 1043. 28 U.S.C. § 455(b) provides in relevant part, "[h]e shall also disqualify himself in the following circumstances: [w]here he has a personal bias or prejudice concerning a party..." 28 U.S.C. § 455(b)(1). A motion under § 455 is addressed to, and must be decided by, the very judge whose impartiality is being questioned." Bernard v. Coyne , 31 F.3d 842, 843 (9th Cir. 1994). "Section 455 clearly contemplates that decisions with respect to disqualification should be made by the judge sitting in the case, and not by another judge." Id . (quoting United States v. Balistrieri , 779 F.2d 1191, 1202 (7th Cir. 1985)). "[S]ection 455 includes no provision for referral of the question of recusal to another judge; if the judge sitting on the case is aware of grounds for recusal under section 455, that judge has a duty to recuse himself or herself." Sibla , 624 F.2d at 868 (citing see, e.g., Nicodemus v. Chrysler Corp. , 596 F.2d 152, 157 & n.10 (6th Cir. 1979)). On the other hand, "in the absence of a legitimate reason to recuse himself, a judge should participate in cases assigned." United States v. Holland , 519 F.3d 909, 912 (9th Cir. 2008).

Under both recusal statutes, § 144 and § 455, 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.'" Pesnell , 543 F.3d at 1043 (quoting United States v. Hernandez , 109 F.3d 1450, 1453 (9th Cir. 1997)). However, the bias must arise from an extra-judicial source and cannot be based solely on information gained in the course of the proceedings. Id . (citing Liteky v. United States , 510 U.S. 540, 554-56 (1994). "Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion.'" In re Focus Media, Inc. , 378 F.3d 916, 930 (9th Cir. 2004) (quoting Liteky , 510 U.S. at 555). "In and of themselves..., they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required... when no extrajudicial source is involved.'" Id.

Because "the test for personal bias or prejudice in section 144 is identical to that in section 455(b)(1), ... consequently, a motion properly brought pursuant to section 144 will raise a question concerning recusal under section 455(b)(1) as well as section 144."[1] Sibla , 624 F.2d at 867. "If, after considering all the circumstances, the judge declines to grant recusal pursuant to section 455(a) & (b)(a), the judge must still determine the legal sufficiency of the affidavit filed pursuant to section 144... [and o]f course, if the motion and affidavit required by section 144 is not presented to the judge, no relief under section 144 is available." Id.

2. 28 U.S.C. § 351

28 U.S.C. § 351(a) provides that "[a]ny person alleging that a judge has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts, or alleging that such judge is unable to discharge all the duties of office by reason of mental or physical disability, may file with the clerk of the court of appeals for the circuit a written ...

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