United States District Court, D. Arizona
Honorable Cindy K. Jorgenson United States District Judge.
before the Court is Plaintiff's affidavit alleging bias
and prejudice (Doc. 11). The Court will construe
Plaintiff's affidavit as a Motion to Reassign Judge. In
its Motion, Plaintiff claims this Court is biased against
Plaintiff, requiring judge reassignment, and cites 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. (emphasis added).
alleges that in a prior case, 4:13-CV-00023-CKJ, this Court
"[a]llied with the defendants. Favored the government.
Showed bias towards plaintiff by lacking the necessary skills
to point to what case law controls." (Doc. 11). For a
party to make a proper 28 U.S.C. §144 showing, he must
prove: (1) timeliness and (2) sufficiency.
general rule with respect to timeliness is that
“[w]hile there is no per se rule that recusal motions
must be made at a fixed point in order to be timely, such
motions should be filed with reasonable promptness after the
ground for such a motion is ascertained.” E. &
J. Gallo Winery v. Gallo Cattle Co., 967 F.2d 1280, 1295
(9th Cir. 1992) (internal citation and quotations omitted);
see also United States v. Bigley, No.
CV-14-00729-PHX-HRH, 2017 WL 3432370, at *3 (D. Ariz. Aug.
10, 2017) (“The Ninth Circuit has not defined a fixed
time after which a party is held to have untimely filed a
recusal motion after ascertaining grounds for such a motion.
However, it is generally held that parties that suspect
possible bias or prejudice toward them must not withhold
filing recusal motions until their dispute has been resolved
on the merits.”).
anxiety surrounding an untimely affidavit largely relates to
a party's attempt to use a recusal motion to manipulate
proceedings and receive an additional adjudication of their
dispute. See E. & J. Gallo Winery, 967 F.2d at
1295 (holding that the absence of a timeliness requirement
“would encourage parties to withhold recusal motions,
pending a resolution of their dispute on the merits, and then
if necessary invoke section 455 in order to get a second bite
at the apple.”). Plaintiff filed his complaint on
October 30, 2018 and this case was assigned to this Court
that same day. (Doc. 1 and Doc. 2). Plaintiff's affidavit
followed 13 days after on November 13, 2018. (Doc. 11). It is
clear that Plaintiff filed his affidavit “with
reasonable promptness”. Plaintiff has therefore met the
timeliness requirement for a proper 28 U.S.C. §144
next inquiry is whether Plaintiff's affidavit is
sufficient. The substantive standard for recusal under 28
U.S.C. § 144 is “[w]hether 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) (citing United States v.
Studley, 783 F.2d 934, 939 (9th Cir. 1986)). “It
should further be preliminarily stated that 28 U.S.C. s 144
must be given the utmost of strict construction to safeguard
the judiciary from frivolous attacks upon its dignity and
integrity.” Rademacher v. City of Phoenix, 442
F.Supp. 27, 29 (D. Ariz. 1977)
only stated reasons for requesting a reassignment is the
Court's ruling in a prior case which Plaintiff was
involved in. Plaintiff alleges this Court favored the
government and showed bias towards the Plaintiff by
neglecting to cite controlling case law. (Doc. 11).
Plaintiff's bare-bones affidavit fails to provide any
supporting facts, evidence, or even what case law the Court
allegedly failed to cite to, and does not raise any proper
grounds for recusal. See Hernandez v. Brewer, No.
CV-11-01945-PHX-JAT, 2017 WL 6554673, at *2 (D. Ariz. Dec.
22, 2017), appeal dismissed, No. 18-15164, 2018 WL 3690419
(9th Cir. May 21, 2018) (“The mere filing of an
affidavit of disqualification pursuant to 28 U.S.C. §
144 does not amount to sufficient proof.”).
to make a sufficient showing pursuant to § 144, the
movant must provide evidence of a judge's impartiality
that stems from an “extrajudicial source”.
Liteky v. United States, 510 U.S. 540, 544 (1994).
“A motion for recusal ordinarily may not be based on
prior rulings in the proceeding, or any proceeding, solely
because they were adverse.” Woodard v. Barnum,
No. CV 09-135-PHX-NVW, 2009 WL 10673490, at *4 (D. Ariz. July
17, 2009) (internal citations and quotations omitted). Even
“[i]f the rulings in question were utterly wrong, that
would not be a basis for disqualification because it would
not be grounded in an extrajudicial source.”
allegations that the Court ignored case law are not
accompanied by any specific showing of what case law the
Court ignored, or any evidence that the Court expressed an
improper antagonism towards Plaintiff. Plaintiff's
affidavit “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.”
United States v. Sibla, 624 F.2d 864, 868 (9th Cir.
1980). “Allegations that are merely conclusory are not
legally sufficient.” Hernandez v. Brewer, No.
CV-11-01945-PHX-JAT, 2013 WL 997459, at *1 (D. Ariz. Mar. 13,
allegations that the Court ignored case law and evidence are
grounds for appeal, not for recusal. Hernandez, 2017
WL 6554673, at *3. Furthermore, “a judge has as strong
a duty to sit when there is no legitimate reason to recuse as
he does to recuse when the law and facts require.”
Clemens v. U.S. Dist. Court for Cent. Dist. of
California,428 F.3d 1175, 1179 (9th Cir. 2005)
(internal citations and quotations ...