Opinion
Civil No. 01cv1401 PCL.
September 23, 2005
ORDER DENYING PLAINTIFF'S MOTION TO DISQUALIFY JUDGE LEWIS (Doc. No. 222)
INTRODUCTION
Now before the Court are Plaintiff's "Motion to Recuse Magistrate Judge" and accompanying documents. (Doc. No. 222) The Court construes Plaintiff's motion as a Motion to Disqualify Judge Lewis.
DISCUSSION
Disqualification for any federal judge is provided for in 28 U.S.C. § 455. District court judges, including judges acting as district court judges, are also covered by the disqualification provisions of 28 U.S.C. § 144. The standards for both sections are essentially the same, a judge must recuse himself if his "impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The disqualification must "be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice, but its appearance." Liteky v. United States, 510 U.S. 540, 548 (1994) (discussing § 455 disqualifications). However, the procedures for disqualification are different between the sections: 1. Disqualification By Section 455
Section 455 requires the judge himself to determine if recusal is necessary. United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980). It reads, "[a]ny justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a) (emphasis added). The upshot of section 455's command is: (1) the judge who's impartiality is in question must decide the issue; and (2) the judge — not the complaining party — is ultimately responsible for finding grounds, if any, for the disqualification. Bernard v. Coyne (In re Bernard), 31 F.3d 842, 843 (9th Cir. 1994).
Nonetheless, the Court shall start with Plaintiff's Motion in the hunt for real or perceived bias, either of which would disqualify the judge. Plaintiff, with great conviction, argues Judge Lewis' prejudice towards Plaintiff is apparent by the judge's rulings against him. (Pl.'s Mot. To Disqualify at 3-4, 9) In particular, Plaintiff takes exception to an order allowing the Defendants a handwriting expert. (Id. at 3) Plaintiff alleges nothing more.
A reasonable person could not question the judge's impartiality simply because he has ruled against Plaintiff; courts would be unworkable otherwise. With every motion a judge, applying the law to the best of his ability, essentially favors one party over the other (the Court sees it at favoring the proper application of the law over the improper application). If every motion-loser could subsequently force the judge to dismiss himself based on section 455, it would take fifty judges to try a case — if that few. Moreover, after its own review the Court finds no grounds — such as a close personal relationship with the Defense, a financial interest in the outcome of the matter, or even hostile comments towards the Plaintiff — to suggest the judge is anything but impartial. Accordingly, the Plaintiff's motion can not succeed based on section 455.
2. Disqualification By Section 144
In contrast to section 455, section 144 requires disqualification to be decided by a judge other than the challenged judge. 28 U.S.C. § 144; Sibla, 624 F.2d at 868. However, the challenged judge still makes the initial determination as to the legal sufficiency of the motion. United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976). The judge must take all facts as true and may only determine whether the motion is legally sufficient in stating "facts and reasons" establishing the judge's bias. Id.
Taking Plaintiff's alleged facts as true, Plaintiff's Motion isnot legally sufficient. As discussed before, merely ruling against a party is not enough for a showing of bias. As Plaintiff has alleged nothing more, his Motion fails and a referral to another judge is unnecessary.
CONCLUSION
For the reasons discussed above, the Plaintiff's Motion to Disqualify Judge Lewis is DENIED. IT IS SO ORDERED.