Opinion
23-cv-04032-VKD
02-01-2024
ERIK ESTAVILLO, Plaintiff, v. DAVE CORTESE, et al., Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR RECUSAL OR DISQUALIFICATION
RE: DKT. NO. 32
VIRGINIA K. DEMARCHI, UNITED STATES MAGISTRATE JUDGE
Plaintiff Erik Estavillo filed this action alleging that defendants violated Title III of the Americans with Disabilities Act (“ADA”) when they refused his request for a third parking permit, beyond the two permits customarily allowed for residents at the County Club Villa Apartments (“Apartments”). See Dkt. No. 1; see also Dkt. No. 21 at 3. His complaint requests, among other things, “[a] declaration that Defendants' policy of not allowing disabled residents to park in designated handicapped parking spaces is in violation of the ADA” and an “[i]njunction prohibiting Defendants from enforcing this policy.” Dkt. No. 1 at 9.
When the parties failed to comply Court's “Scheduling Order for Cases Asserting Denial of Right of Access under Americans with Disabilities Act, Title II & III (42 U.S.C. §§ 12131-89)” (Dkt. No. 2), the Court directed them to submit status reports “advising as to (1) the status of the action; (2) a proposed schedule for any further proceedings, as may be necessary; and (3) any other matters that may facilitate a just and efficient disposition of this case.” Dkt. No. 27. In his status report, Mr. Estavillo stated that he no longer lives at the Apartments. See Dkt. No. 28 at 1; see also Dkt. No. 26 at 1. In their status report, defendants asserted that they intended to seek dismissal of Mr. Estavillo's ADA claim, on the ground that the ADA does not apply to private residences. See Dkt. No. 29. The Court set a schedule for the parties to brief matters raised in their reports, including whether Mr. Estavillo's representations about his change of residence mooted his ADA claim. Dkt. No. 31.
Mr. Estavillo then filed a motion for the Court's recusal, followed by two additional filings in which he reiterates his request for recusal or disqualification. See Dkt. Nos. 32, 33, 34. The matter is deemed suitable for determination without oral argument. Civil L.R. 7-1(b).
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 herself “in any proceeding in which [her] 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).
Mr. Estavillo's motion seeks recusal under “§ 2200.68,” which appears to be a reference to 29 C.F.R. § 2200.68. That regulation does not concern recusal in federal court proceedings, but rather in the context of Occupational Safety and Health Review Commission hearings. In a subsequent filing, Mr. Estavillo requested disqualification under 28 U.S.C. § 455. See Dkt. No. 34. This Court broadly construes Mr. Estavillo's request for recusal/disqualification, and evaluates his request under both 28 U.S.C. § 144 and 28 U.S.C. § 455.
Upon receipt of a motion under § 144, “[t]he judge who is the subject of disqualification . . . makes the initial determination as to the legal sufficiency of the declaration.” Reiffin v. Microsoft Corp., 158 F.Supp.2d 1016, 1021 (N.D. Cal. 2001) (citations omitted); see also United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) (“We have held repeatedly that the challenged judge himself should rule on the legal sufficiency of a recusal motion in the first instance.”). An affidavit is legally sufficient when “it specifically alleges facts that fairly support the contention that the judge exhibits bias or prejudice directed toward a party that stems from an extrajudicial source.” United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980) (citations omitted). 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). Disqualification under § 455 “is directed to the judge, rather than the parties, and is self-enforcing on the part of the judge.” Id. at 867-68.
“The substantive standard for recusal under 28 U.S.C. § 144 and 28 U.S.C. § 455 is the same: Whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” United States v. McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (internal quotations and citation omitted); see also United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008) (“The ‘reasonable person'” is “a well-informed, thoughtful observer”) (internal quotations and citation); Sibla, 624 F.2d at 867 (“The test for personal bias or prejudice in section 144 is identical to that in section 455(b)(1), and the decisions interpreting this language in section 144 are controlling in the interpretation of section 455(b)(1).”). Additionally, motions for recusal are “limited by the ‘extrajudicial source' factor which generally requires as the basis for recusal something other than rulings, opinions formed or statements made by the judge during the course of trial.” Holland, 519 F.3d at 913-14; see also Sibla, 624 F.2d at 868 (affidavit not legally sufficient unless it alleges facts demonstrating bias or prejudice that “stems from an extrajudicial source”). Judicial rulings generally are not a valid basis for a recusal motion. See Liteky v. United States, 510 U.S. 540, 555 (1994).
Mr. Estavillo's allegations of bias or prejudice, unsupported by any affidavit, fail to establish any basis, under either § 144 or § 455, for a determination that the Court's impartiality might reasonably be questioned. He alleges that the Court “is now believing [his ADA claim] is ‘moot,'” “is obviously protecting the Senator [defendant David Cortese]” and “exhibits a pronounced bias against pro se litigants daring to argue their cases without legal representation.” Dkt. No. 32 at 1, 2. He further alleges that the Court's bias is “evidenced by a consistent pattern of decision in favor of the defendant and against the plaintiff,” and that such “repeated pattern of decisions in favor of the defendant may create a perception that the judge is biased or has a predisposition in favor of the sitting California Senator.” Dkt. No. 34 at. 2.
Mr. Estavillo's allegations regarding personal bias and prejudice are conclusory. See United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995) (“mere conclusory allegations . . . are insufficient to support a claim of bias or prejudice such that recusal is required.”); see also Holland, 519 F.3d at 913 (“The standard must not be so broadly construed that it becomes, in effect, presumptive, so that recusal is mandated upon the merest unsubstantiated suggestion of personal bias or prejudice.”) (internal quotations and citation omitted). He does not substantiate his allegations concerning a “repeated pattern of decisions in favor of the defendant.” Nor does Mr. Estavillo cite any plausible extrajudicial source of bias or prejudice. Rather, his allegations appear to stem principally from the Court's January 25, 2024 “Order Setting Briefing Schedule” (Dkt. No. 31). Contrary to Mr. Estavillo's suggestion, this Court has made no decisions or rulings concerning matters addressed in that order, and has given the parties an opportunity to brief those issues and state their views. Dkt. No. 31. In sum, Mr. Estavillo has not demonstrated any facts or circumstances that would cause a “well-informed, thoughtful observer” to conclude that the Court's impartiality might reasonably be questioned. Holland, 519 F.3d at 913-14. Accordingly, his motion for recusal/disqualification is denied.
To the extent defendants file a motion by the February 8, 2024 deadline, Mr. Estavillo has until February 22, 2024 to file his written response. Dkt. No. 31 at 2.
The Court reminds Mr. Estavillo that the Federal Pro Se Program at the San Jose Courthouse provides free information and limited-scope legal advice to self-represented litigants in federal cases. Information regarding the Program can be found at https://cand.uscourts.gov/prose- litigants/the-federal-pro-se-program-at-the-san-jose-courthouse/. Appointments may be scheduled by calling 408-297-1480.
IT IS SO ORDERED.