United States District Court, N.D. California, San Francisco Division
July 17, 2014
VINCENT PRICE McCOWAN, Plaintiff,
A. AVALOS, Defendant.
MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT; ORDER DENYING MOTION TO
This is a federal civil rights action filed pursuant to 42 U.S.C. §
1983 by a pro se state prisoner. Plaintiff's third amended complaint has been
served on defendant, who is to file a dispositive motion on or before October
Plaintiff since has filed an amended complaint (Docket No. 33), which
the Court construes as a motion (1) for leave to file an amended complaint, and
(2) to disqualify the judge presiding over this action. Both motions are DENIED.
I. Motion for Leave to File an Amended Complaint
By way of his amended complaint, plaintiff seeks to raise dismissed
claims. Because plaintiff fails to provide sufficient reason to revive such
claims, his motion for leave to file an amended complaint is DENIED.
II. Motion to Disqualify
Plaintiff moves to disqualify the presiding judge for reasons the
motion does not make clear. The Court infers that plaintiff asserts that the
presiding judge is prejudiced and biased against him, as evidenced by the
judge's failure to rule in his favor on his motions and requests. A party may
move to disqualify, or recuse, a judge from presiding in a given case. Motions
to disqualify fall under two statutory provisions, 28 U.S.C. § 144 and 28 U.S.C.
§ 455. Section 144 provides for recusal where a party files a timely and
sufficient affidavit averring that the judge before whom the matter is pending
has a personal bias or prejudice either against the party or in favor of an
adverse party, and setting forth the facts and reasons for such belief. See
28 U.S.C. § 144. Similarly, § 455 requires a judge to disqualify himself "in any
proceeding in which his impartiality might reasonably be questioned, " 28 U.S.C.
§ 455(a), including where the judge "has a personal bias or prejudice concerning
a party, " id. § 455(b)(1).
A judge finding a § 144 motion timely and the affidavits legally
sufficient must proceed no further and another judge must be assigned to hear
the matter. United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980).
Where the affidavit is not legally sufficient, however, the judge at whom the
motion is directed may determine the matter. See id. at 868 (holding
judge challenged under § 144 properly heard and denied motion where affidavit
not legally sufficient).
The substantive test for personal bias or prejudice is identical under
§§ 144 and 455. See Sibla, 624 F.2d at 868. Specifically,
under both statutes recusal is appropriate where "a reasonable person with
knowledge of all the facts would conclude that the judge's impartiality might
reasonably be questioned." Yagman v. Republic Ins., 987 F.2d 622, 626
(9th Cir. 1993) (citation omitted). Consequently, an affidavit filed under § 144
will raise a question concerning recusal under §§ 455(a) and (b)(1) as well.
Sibla, 624 F.2d at 867.
Here, as noted, plaintiff moves to disqualify the undersigned on the
ground of prejudice and bias. Merely ruling against plaintiff is not sufficient
to show prejudice or bias, however. See Liteky v. United States,
510 U.S. 540, 555 (1994) (holding judicial rulings on basis of facts introduced
or events occurring in course of judicial proceedings "almost never" provide
grounds for recusal); Sibla, 624 F.2d at 868 (holding affidavit not
legally sufficient unless it alleges facts demonstrating bias or prejudice that
"stems from an extrajudicial source"). In sum, plaintiff's allegations
categorically fail to establish any basis, under either § 144 or § 455, for a
determination that the Court's impartiality might reasonably be questioned
herein, and, consequently, are insufficient as a matter of law. Accordingly,
plaintiff's motion to disqualify is DENIED.
IT IS SO ORDERED.