United States District Court, E.D. California
ORDER DENYING AS MOOT PLAINTIFF'S MOTION TO
DISQUALIFY MAGISTRATE JUDGE GARY S. AUSTIN FROM PARTICIPATION
IN THIS CASE (ECF No. 41.) ORDER DENYING PLAINTIFF'S
REQUEST TO WITHDRAW CONSENT TO MAGISTRATE JUDGE JURISDICATION
(ECF No. 42.)
I.
BACKGROUND
Marlon
Blacher ("Plaintiff") is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action pursuant to 42 U.S.C. §
1983. On June 24, 2016, Plaintiff filed a motion under 28
U.S.C. § 455 to disqualify Magistrate Judge Gary S.
Austin from participating in this case. (ECF No. 41.) On the
same date, Plaintiff also filed a document titled
"Notice to Correct Inaccurate Presumptions and
Presentment to Remove Cause to Proper District Court."
(ECF No. 42.)
II.
MOTION TO DISQUALIFY MAGISTRATE JUDGE GARY S. AUSTIN
A.
Legal Standard
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).
The
substantive standard is "'whether 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.
B.
Discussion
Plaintiff
seeks to disqualify Magistrate Judge Gary S. Austin from
participation in this case. Plaintiff's motion shall be
denied. Plaintiff sets forth no argument in support of his
motion for the Court's consideration. Moreover,
Plaintiff's motion is moot because on June 24, 2016, this
case was reassigned to Magistrate Judge Erica P. Grosjean,
and therefore Magistrate Judge Gary S. Austin is no longer
assigned to this case. (Court Record.)
II.
REQUEST TO REMOVE CAUSE TO PROPER DISTRICT COURT
A.
Plaintiff's Motion
Plaintiff
requests removal of "this Cause to the [d]istrict
[c]ourt of the United States (26 U.S.C. § 7402) for the
California Republic [Eastern District], from the
administrative/legislative/territorial/insular possession
court formerly hearing this cause." (ECF No. 42 at
2:13-15.) Plaintiff argues that "being a suit at common
law to which the judicial power shall extend, this Cause
shall be heard before a [sic] Article III, Section
1, Constitution of the United States 1787 mentioned judge of
whom the judicial power is vested." (Id. at
2:8-10.)
B.
Discussion
To the
extent that Plaintiff seeks to decline the jurisdiction of a
Magistrate Judge in this case, he may not do so in this
manner at this juncture. On July 30, 2012, Plaintiff
consented to the jurisdiction of a Magistrate Judge under 28
U.S.C. § 636(c). (ECF No. 5.) Now, it appears that
Plaintiff seeks to withdraw his consent. Plaintiff makes no
argument in support of his request.
Once a
civil case is referred to a magistrate judge under section
636(c), the reference can be withdrawn only by the district
court, and only Afor good cause shown on its own motion, or
under extraordinary circumstances shown by any party."
Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993)
(quoting Fellman v. Fireman's Fund Ins. Co., 735
F.2d 55, 58 (2d Cir.1984)); 28 U.S.C. § 636(c)(6);
Fed.R.Civ.P. 73(b). There is no absolute right, in a civil
case, to withdraw consent to trial and other proceedings
before a magistrate judge. Dixon 990 F.2d at 480.
Plaintiff has not shown any extraordinary circumstances ...