Smith v. Limerick, No. 1:2017cv00712 - Document 120 (D. Or. 2020)

Court Description: OPINION AND ORDER: The Court concludes that Plaintiff's Motion and affidavit are legally insufficient and there is no need to refer Plaintiff's motion to another Judge. Motion to Recuse 109 is DENIED. Please access entire text by document number hyperlink. Signed on 12/10/2020 by Magistrate Judge Mark D. Clarke. (rsm)

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Smith v. Limerick Doc. 120 IN 1HE UNITED STATES DISTRICT COURT FOR 1HE DIS1RICT OF OREGON· MEDFORD DIVISION G. SMITII, Civ. No. 1:17-cv-00712-CL Plaintiff, OPINION & ORDER v. JILL LIMERICK, Defendant CLARKE, Magistrate Judge. · This matter comes before the Court on Plaintiffs M.otion to Recuse. · ECF No. 109. Pursuant to Local Rule of Civil Procedure 7-l(d)(l), the Court concludes that the motion is . appropriate for resolution without oral argument. l The motion is DENIED. Plaintiff moves for recusal purSllant to federal statute 28 U.S.C. § 144, which provides in pertinent part: Whenever ·a party to any proceeding iri a district court makes and ·fl.I~ a timely and sufficient affidavit that the judge before whom the matter is pending has a personal·· · bias or prejudice against him or in favor. of any adverse party, such judge shall proceed rio further therein, but another judge shall be assigned to hear such · · · proceeding. the affidavit shall state the facts and the reasons for the belief ~t 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 shQwn for the 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. ·· 1 In the specific case ofa motion to recuse, "since the inquiry is addressed to the facial sufficiency of the affidavitnot to the truth or falsity the facts stated therebi, a 'hearing' is unnecessary." Toth 'V. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (internal quotation marks and citation omitted, alterations nonn_alized). of Page 1-0PINION & ORDER Dockets.Justia.com 28 u.s.c. § 144. .. . The judge against whom such an affidavit is filed cannot pass on the truth or falsity of the . . facts stated in the affidavit. United States v. Montecalvo, 545 F.2d 684, 6~5 (9th Cir. 1976). However, the judge is entitled to pass upon the legal sufficiency of.the affidavit. Id ."Only after . : ' the legal ~ufficiency of the affidavit is dete~ined does it be.come th~ duty of the judge 'to proceed no further' in the case." Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) ·. . " . (citation omitted). "Ari affidavit filed pursuant to [§1¥] 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 Stp.tes v. .Sib/a, 624 f.2d 864, 868 (9th Clr. 1980). A motion to disqualify must be denied when the motion and affidavit in support ·"contain only [the moving party's] conclusions and are devoid of sp~cific fact allegations tending to show personal bias stemming from an extrajudicial source." !d Recusal is appropriate where "a reaso~able person with knowledge of.a.11 the facts _would conclude that the judge's impartiality '• might reasonably q~estion." Yagman v. Republic [ns;, 987 F.2d 622,626 (9th Cir. 1993) (internal quotation marks and citation omitted). For a judge to be disqualified, there must be showing of "such a high degree of favoritism or .antagonism as to make fair judgment impossible." Liteky v. · United States, 510 U.S. 540,555 (1994)~ . . . In this case; Plaintiffs motion and affidavit do not contain any allegations tending to show personal bias stemming from an ex.trajudicial source. As evi~ence of bias, Plaintiff cites only to the Court's rulings and orders. "A judge's ruling against a party does not, without much more. compelling evidence, show prejudice against that party, or bias in favor of the prevailing party." Toddv. McMahn, No. l:15-cv-1091-MC, 2016 WL 843264, a~ *2 (D. Or. Mar. 1, 2016); see also Page 2 -OPINION & ORD~R United States v. Holland, 519 F.3d 909, 914 (9th Cir. 2008) (The judge's "conduct during . . pro~ings should not exqept in the 'rarest of circumstances' form the sole basis for rec al.") . . . (quoting Liteky, 510 U.S. at 555 (footnote omitted)). The. Court tl:ierefore conclud . . motion and affidavit are legally. insufficient and there is no need to another judge. Th~ Motion to Recuse, ECF No. 109, is DENIE . It is so ORDERED and DATED.this -----,~ . Page 3 -OPINION & ORDER

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