United States District Court, D. Arizona
David G. Campbell United States District Judge
Plaintiff Samuel Louis Fuller, who is currently confined in Maricopa County Fourth Avenue Jail, brought this civil rights case pursuant to 42 U.S.C. § 1983. (Doc. 41.) Pending before the Court is “Plaintiff’s § 144 Bia[s] or prejudice of judge/Affidavit, ” (Doc. 163) in which Plaintiff seeks recusal of the undersigned judge.
Plaintiff seeks recusal under 28 U.S.C. § 144, which provides:
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.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
28 U.S.C. § 144.
To be entitled to relief under §144, a party must submit a proper motion and affidavit. United States v. Sibla, 624 F.2d 864, 868 (9th Cir. 1980). If a proper motion and affidavit are submitted, the judge still must determine the legal sufficiency of the affidavit filed pursuant to § 144. If that affidavit is sufficient on its face, the motion must be referred to another judge for a determination of its merits under § 144. Id. “An affidavit filed pursuant to that section is not legally sufficient unless 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.” Id.
“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. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (internal citation omitted). “Ordinarily, the alleged bias must stem from an ‘extrajudicial source, ’” and judicial rulings by themselves do not constitute a valid basis for recusal. Id. at 1454. “Opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” Id. (internal citation omitted.)
Plaintiff seeks recusal of the undersigned because (1) the undersigned denied Plaintiff’s motions for injunctive relief, (2) the undersigned has allowed Defendant to harass Plaintiff because the Court has not commented on Defendant’s references to Plaintiff’s mental state in response to motions and is biased against Plaintiff on the basis of his disabilities, and (3) the Court improperly warned Plaintiff in its January 26, 2016 Order (Doc. 157) that “harassing, coercive, argumentative, threatening or similar statements to opposing counsel will not be permitted.”
Plaintiff’s motion and “affidavit” do not comply with §144 and Plaintiff is not entitled to relief under § 144. First, although the title of Plaintiff’s motion has the word “affidavit” in it, Plaintiff has not submitted a proper affidavit in compliance with 28 U.S.C. § 1746 to support his motion. See 28 U.S.C. § 1746 (requiring unsworn declaration to be under penalty of perjury). Moreover, to be entitled to referral of his motion to another judge, Plaintiff must specifically allege facts that fairly support the contention that the undersigned exhibits bias or prejudice toward Plaintiff that stems from an extrajudicial source. Here, Plaintiff’s motion concerns matters arising in this litigation and fails to allege personal bias stemming from an extrajudicial source. Accordingly, the undersigned declines to refer this matter to another judge.
With regard to Plaintiff’s arguments, the Court’s denial of Plaintiff’s motions for injunctive relief are not a proper basis for recusal, despite Plaintiff’s disagreement with the Court’s rulings. Although Plaintiff contends that the Court has allowed Defendant to harass Plaintiff by making references to his mental state, Plaintiff has presented no evidence of harassment to the Court and, although the Court understands that Plaintiff contends that he feels harassed, the Court cannot act without evidence. Finally, although Plaintiff objects to the Court’s warning that “harassing, coercive, argumentative, threatening or similar statements to opposing counsel will not be permitted” because Plaintiff finds the statement to be vague and intimidating, the statement does not show that the undersigned has a deep-seated favoritism or antagonism that would make ...