Boutros v. Hony

Full title: GEORGE BOUTROS, Plaintiff, v. CORY HONY, et al., Defendants.

Court: United States District Court, Eastern District of California

Date published: Sep 29, 2021

2:19-CV-1080-JAM-DMC (E.D. Cal. Sep. 29, 2021)

Opinion

2:19-CV-1080-JAM-DMC

09-29-2021

GEORGE BOUTROS, Plaintiff, v. CORY HONY, et al., Defendants.

DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE

ORDER

DENNIS M. COTA, UNITED STATES MAGISTRATE JUDGE

Plaintiff, who is proceeding pro se, brings this civil rights action. Pending before the Court is Plaintiff's motion, ECF No. .66, to disqualify the undersigned from further participation in this case.

Plaintiff's motion is governed by 28 U.S.C. § 144, which provides as follows:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

Berger v. United States, 255 U.S. 22 (1922), is the primary case interpreting § 144. See U.S. v. Azhocar, 581 F.2d 735, 738 (1976). As a preliminary matter, the Court in Berger held that the judge against whom a disqualification motion is brought may pass on its legal sufficiency. See Berger, 255 U.S. at 233. To be sufficient, the motion must state facts which, if true, fairly support the allegation of bias or prejudice which stems from an extrajudicial source and which may prevent a fair decision. See Azhocar, 581 F.2d at 740-41. Thus, the Supreme Court in Berger also held that adverse rulings alone cannot constitute the necessary showing of bias or prejudice. See Berger, 255 U.S. at 34.

Plaintiffs motion incorporates his objections to the Court's August 18, 2021, findings and recommendations and contains to further argument. See ECF No. 66. In his objections, Plaintiff challenges various findings made by the undersigned in connection with Defendants' motion to dismiss. Plaintiffs argument in support of disqualification is thus based entirely on the Court's adverse ruling and not on any alleged bias or prejudice stemming from an extrajudicial source.

Accordingly, IT IS HEREBY ORDERED that Plaintiffs motion to disqualify the undersigned, ECF No. 66, is denied.