United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
before the Court is Plaintiff Demetrius A. Wilson's
“Notice of Change of Magistrate Judge Deborah M. Fine
and Requesting She Be Removed” (“Motion”),
filed on September 21, 2016. (Doc. 4). As the title of the
motion suggests, Plaintiff seeks to remove Magistrate Judge
Fine from presiding over the instant Writ of Habeas Corpus
proceeding. Plaintiff contends that she has a
“conflict of interest, ” stemming from her
presence in another matter in which Plaintiff is a litigant,
2:16-CV-2096-JAT-DMF. (Id. at 1). Having considered
Plaintiff's filing, the Court now rules on the motion.
statutes govern whether a federal judge must recuse in a
particular case, Title 28 U.S.C. §§ 144 and 455
(2012). The Court is unclear as to which statute Plaintiff
moves under, and will address both with respect to
144 applies when a party to a proceeding believes that the
judge “has a personal bias or prejudice either against
him or in favor of any adverse party, ” 28 U.S.C.
§ 144, and “expressly conditions relief upon the
filing of a timely and legally sufficient affidavit.”
United States v. Sibla, 624 F.2d 864, 867 (9th Cir.
1980) (citations omitted). Specifically, the statute
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 [session]
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. When a party files a timely and legally
sufficient affidavit pursuant to section 144, the judge
“shall proceed no further therein, but another judge
shall be assigned to hear such proceeding.”
Id.; Sibla, 624 F.2d at 867. But “if
the motion and affidavit required by section 144 [are] not
presented to the judge, no relief under section 144 is
available.” Sibla, 624 F.2d at 868.
reviewed Plaintiff's motion, the Court finds that it does
not comply with the requirements set forth in 28 U.S.C.
§ 144. Plaintiff has not attached any affidavit to his
motion, let alone one that alleges sufficient facts to
satisfy the statute's demands. Thus, to the extent
Plaintiff's motion is brought under section 144, it will
be denied, with prejudice.
Plaintiff's motion under 28 U.S.C. § 455,
argues that Magistrate Judge Fine must be removed due to a
“conflict of interest” with a separate, ongoing
matter. (Doc. 4 at 1). Reading Plaintiff's motion
liberally, as the Court must, the Court finds that
Plaintiff's argument is best characterized as one under
28 U.S.C. § 455(a), where a judge must “disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” See also United States
v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)
(quoting United States v. Studley, 783 F.2d 934, 939
(9th Cir. 1986)), cert. denied, 513 U.S. 1171, 115
disqualifying, the judge's bias, partiality, or prejudice
must stem from an extrajudicial source, as the Supreme Court
has held that “judicial rulings alone almost never
constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S.
540, 554 (1994). In Liteky, the Supreme Court went
on to explain that “opinions formed by a judge on the
basis of facts introduced or events occurring in the course
of judicial proceedings do not provide a basis for recusal
unless they indicate that the judge has ‘a deep-seated
favoritism or antagonism that would make fair judgment
impossible.'” Reed v. Barcklay, No.
CV-11-01339-PHC-JAT (JFM), 2012 U.S. Dist. LEXIS 87988, at
*11 (D. Ariz. June 25, 2012) (quoting Liteky, 510
U.S. at 555).
Plaintiff's motion fails for two reasons. First, the
motion is accompanied by absolutely no facts or evidence in
support of Plaintiff's claim of partiality/conflict of
interest. Thus, no “reasonable person with knowledge of
all the facts would conclude the judge's impartiality
might reasonably be questioned.” Taylor v. Regents
of Univ. of Cal., 993 F.2d 710, 712 (9th Cir. 1993)
(citation omitted); see also United States v. $292,
888.04 U.S. Currency, 54 F.3d 564, 566 (9th Cir.
1995) (noting that allegations of bias or partiality that are
conclusory in nature are legally insufficient to support
recusal/removal). Second, the only alleged source of
Magistrate Judge Fine's alleged partiality/conflict of
interest is the fact that she was assigned to
2:16-CV-2096-JAT-DMF and has issued a number of
“judicial rulings, ” expressly foreclosed as an
appropriate basis for removal by the Supreme
Court. Liteky, 510 U.S. at 554.
light of these realities, Plaintiff has failed to carry his
burden under either 28 U.S.C. §§ 144 or 455(a), and
his motion will be denied.
reasons discussed previously, IT IS ORDERED that the
reference to the Magistrate Judge is withdrawn only with
respect to Plaintiffs “Notice of Change of Magistrate
Judge Deborah M. Fine and Requesting She Be Removed, ”