November 14, 2013
Ivan Von Staich Plaintiff,
California Men's Colony-East Medical Doctors, et al., Defendants.
ORDER DENYING DEFENDANT'S MOTION TO RECUSE MAGISTRATE JUDGE BLOCK [Dkt. Nos. 11, 14]
DEAN D. PREGERSON, District Judge.
This matter comes before the court on Plaintiff Ivan von Staich's Motion to Recuse Magistrate Judge Block. Having reviewed Defendant's submissions, the court DENIES the motion and adopts the following order.
In 2012, this court accepted Magistrate Judge Block's recommendation and report denying Plaintiff's petition for relief brought pursuant to 28 U.S.C. § 2254 in case number SACV 12-01050-DDP (RNB). (Mot., Ex. B.) Plaintiff appealed that decision, and the Ninth Circuit Court of Appeals declined to allow the appeal to proceed. (SACV 12-01050-DDP (RNB) Dkt. No. 40.)
Petitioner later filed this 42 U.S.C. § 1983 civil rights action, which was ultimately transferred to Magistrate Judge Block. Plaintiff now seeks to recuse Magistrate Judge Block for "deliberate bias" under 28 U.S.C. Sections 144 and 455(a). (Mot. at 1.) Plaintiff asserts that Magistrate Judge Block's "previous decision... shows he favors state prosecutors...." (Mot. at 8.)
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 test for personal bias or prejudice in section 144 is identical to that in section 455(b)(1)...." United States v. Sibla , 624 F.2d 864, 867 (9th Cir. 1980). "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." Id . The Ninth Circuit has articulated the standard for disqualification under § 455 as follows:
The test under § 455(a) is whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned. Typically, a judge's partiality must be shown to be based on information from extrajudicial sources, although sometimes, albeit rarely, predispositions developed during the course of a trial will suffice. In the instance where the partiality develops during the course of the proceedings, it can be the basis of recusal only when the judge displays a deep-seated and unequivocal antagonism that would render fair judgment impossible.
F.J. Hanshaw Enters., Inc. v. Emerald River Dev., Inc. , 244 F.3d 1128, 1144-45 (9th Cir. 2001) (internal quotations and citations omitted).
Here, Plaintiff has not established that Magistrate Judge Block's impartiality could reasonably be called into question. Though Plaintiff clearly disagrees with Magistrate Judge Block's prior conclusions regarding Plaintiff's petition for a writ of habeas corpus, Plaintiff has not established that Magistrate Judge Block received any extrajudicial information or bears a "deep-seated and unequivocal antagonism" toward Perry "that would render fair judgment impossible" in this action. F.J. Hanshaw Enters. , 244 F.3d at 1144-45.
For the reasons state above, Plaintiff's Motion to Recuse is DENIED.
IT IS SO ORDERED.