United States District Court, N.D. California
CARMEN O. HAYNES, et al., Plaintiffs,
CITY OF COLUSA, et al., Defendants.
ORDER DENYING MOTION TO DISQUALIFY
RICHARD SEEBORG United States District Judge.
action was filed in San Francisco Superior Court by
plaintiffs Carmen O. Haynes, and her son, Gregory M. Haynes.
Mr. Haynes, a member of the California Bar, appeared as
counsel for his mother, as well as on his own behalf.
Defendants removed the action to this court. Because Mr.
Haynes has been disbarred from the Northern District of
California, he was advised that he could not represent his
mother in this proceeding. Although Carmen Haynes did not
subsequently enter a formal appearance in pro se,
she has signed pleadings in that capacity and therefore is
deemed to be representing herself.
motion in which Carmen Haynes has not joined, Mr. Haynes
seeks disqualification of the undersigned, as well as all of
the other judges of the Northern District of California. Mr.
Haynes' theory is that the undersigned demonstrated bias
against him by dismissing his complaint in Haynes v.
Moawad, 3:17-cv-05540-RS shortly after it was filed,
pursuant to 28 U.S.C. §1915. The Ninth Circuit has
recently dismissed Mr. Haynes' appeal in that matter,
finding it to be frivolous.
Haynes also asserts the undersigned should be disqualified
based on a friendship with Chief Judge Hamilton, who was a
defendant in Haynes v. Moawad, and who was involved
in In re Haynes, 10-cv-04642. Mr. Haynes further
complains that the rulings in Haynes v. Moawad, did
not address all of his arguments. He additionally makes
reference to Gillis et al v. City & County of San
Francisco, 08-cv-03871-RS, a case in which he acted as
counsel for plaintiffs, and the undersigned issued rulings
that were unfavorable to his clients.
Haynes further contends the entire bench of the Northern
District must be disqualified. While he offers complaints
only with respect to a few specific judges, he seems to be
arguing that in light of the relationships among the members
of the bench and/or given the proceedings in In re
Haynes, bias may be presumed as to all the
disqualification motion lacks merit and is hereby denied.
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, Section 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).
finding a Section 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 Sections 144 and 455. See
Sibla, 624 F.2d at 868. Specifically, under either
statute 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).
Mr. Haynes has made no showing that a reasonable person would
question the impartiality towards him of any of the judges of
the district. His disagreement with the substance of
unfavorable rulings in matters where he was counsel or a
party does not equate to bias.
Haynes also suggests an inference of bias may be drawn from
the fact that a prior order in this action advised defendants
that they could seek a transfer for convenience to the
Eastern District. That observation was made in response to a
contention in defendants' notice of removal that
“[ultimately, proper venue lies in the Eastern District
of the State of California.” The order noted that
defendants had waived any objection that venue is
improper in this district. See Abordo v. Corr. Corp. of
Am., 2011 WL 2604702, at *1 (D. Haw. June 30, 2011)
(“removal constitutes a waiver of any venue
objection”). As such, the ruling was in Mr. Haynes'
favor, and cannot support any inference of bias
against him. While basic venue rules might ordinarily call
for this matter to be heard in Sacramento County Superior
Court or the Eastern District, plaintiffs are now entitled to
proceed here and the court is prepared to adjudicate the case
in the ordinary course of business.
Haynes nevertheless continues to hold the subjective belief
that he will be at a disadvantage litigating in this
District, he has the option of dismissing and refiling in
state or federal court in Sacramento. To permit Mr. Haynes to
exercise that choice, rulings on the pending motions to
dismiss will be held in abeyance for at least five additional