Opinion
3:04-CV-0455 JCM (GWF), 3:05-CV-0076 JCM (GWF).
August 24, 2010
ORDER
Presently before the court is plaintiff Hussein S. Hussein's motion for recusal of district judge (Doc. #863). Plaintiff filed his motion for recusal pursuant to 28 U.S.C. § 144 and § 455 on grounds that Judge Mahan is prejudiced, partial, biased, and has numerous conflicts of interest.
Judicial integrity is imperative. Stone v. Powell, 428 U.S. 465 (1976). Accordingly, "[a] judge is required to disqualify himself if his impartiality might reasonably be questioned, or if he has a personal bias or prejudice for or against a party." Hasbrouck v. Texaco, Inc., 842 F.2d 1034, 1045 (9th Cir. 1987) (citing 28 U.S.C. §§ 455(a), 455(b)(1))). Indeed, Congress enacted two federal statutes — 28 U.S.C. § 144, "Bias or prejudice of a judge" and 28 U.S.C. § 455, "Disqualification of justice, judge, or magistrate" — to protect parties' interests in fair judicial processes. Together, these statutes set forth the circumstances under which a judge must recuse himself. "Although the substantive test for bias or prejudice is identical in sections 144 and 455, the procedural requirements of the two sections are different." United States v. Sibla, 624 F.2d 864, 867 (9th. Cir. 1980).
Plaintiff presents two reasons in support for his motion for recusal: (1) Judge Mahan's relationships with former Governor Guinn, and (2) Judge Mahan's relationship with his prior law clerk, Amanda Yen, who is an associate from McDonald Carano Wilson. Plaintiff filed this motion after the court granted defendants' motion for attorneys' fees (Doc. #833) and after the court found plaintiff in contempt of court for the third time (Doc. #878).
A. Disqualification under 28 U.S.C. § 144
Under 28 U.S.C. § 144, where the "judge before whom the matter is pending has a personal bias or prejudice . . . against a party or in favor of any adverse party," another judge shall be assigned to hear the motion. However, the legal sufficiency of the motion is determined by the judge against whom the recusal is sought. United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978). The affidavit alleging bias must "state facts and reasons which tend to show personal bias and prejudice regarding justiciable matter pending and must give support to the charge of a bent of mind that may prevent or impede impartiality of judgment." Berger v. United States, 255 U.S. 22, 33 (1921). The facts alleged must be "sufficient to convince a reasonable man" of the judge's actual bias or prejudice. Curry v. Jensen, 523 F.2d 387, 388 (9th Cir. 1975).
In this case, plaintiff's affidavit in support of recusal does not provide evidence of bias. Plaintiff alleges that Judge Mahan has a bias and prejudice against plaintiff, because plaintiff named then Governor Guinn as a defendant in Hussein 6. However, plaintiff voluntarily dismissed the Hussein 6 case. Furthermore, Hussein 6 was not before Judge Mahan. Hussein 6 was only relevant to the case at hand to demonstrate one of many example's of plaintiff's conduct as a vexatious litigant. The fact that Governor Guinn was a party in the Hussein 6 case had no relevance to the issues before this court, and therefore would not be "sufficient to convince a reasonable man" that Judge Mahan was biased or prejudiced towards plaintiff.
Amanda Yen was a prior law clerk for Judge Mahan. She currently works for the law firm of McDonald Carano Wilson in the Las Vegas office. She is not an attorney on this case, nor do the billing records for this case reveal that she has contributed her time to this case. Plaintiff is in possession of these billing records. (Doc. #823). Thus, merely being a prior law clerk for Judge Mahan and keeping in touch with him does not equate to evidence of bias or prejudice against the plaintiff. See United States v. Bosch, 951 F.2d 1546, 1548-49 (9th Cir. 1991) (holding failure to recuse where prosecutor was former law clerk was not plain error where there was no demonstration of bias).
The court's orders throughout this case have been decided fairly and impartially. The court reviews all relevant evidence before determining the merits of a motion. Although plaintiff may dislike the court's order granting attorneys' fees and the order holding plaintiff in contempt for the third time, the evidence demonstrates that plaintiff has continually disregarded the court's warnings and past orders (including the injunction). Plaintiff has only himself to blame for his irresponsible behavior throughout this case, and the consequences that have followed as a result.
After reviewing the plaintiff's motion, affidavits, and evidence, this court finds no basis for recusal under 28 U.S.C. § 144.
B. Disqualification under 28 U.S.C. § 455
Unlike section 144, which requires a judge to refer a motion to recuse to another judge after determining the legal sufficiency or insufficiency of the accompanying affidavit supporting recusal, section 455 is a self-enforcing statute. Id. at 867-68. Thus, under section 455, the decision regarding whether recusal is warranted rests with the presiding judge. See id. at 868.
Section 455(a) and (b) provide separate, but overlapping bases for recusal. Subsection (a) is broad, requiring recusal "in any proceeding in which [a judge's] impartiality might reasonably be questioned." 28 U.S.C. § 455(a). In contrast, subsection (b) is narrower, requiring recusal only when a judge: (1) has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; (2) has served as a lawyer in the matter in controversy when in private practice; (3) has served in government employment and in such capacity participated in the case; (4) knows that he or a family member has a financial interest in the case; or (5) when he or a family member is a party to the suit. 28 U.S.C. § 455(b)(1-5). Any circumstance in which a judge's impartiality might reasonably be questioned, whether or not touched on in section 455(b), requires recusal under section 455(a). Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 860 n. 8, 108 S.Ct. 2194, 2203 n. 8 (1988).
The standard for recusal under both section 455(a) and (b) is "whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned." Pesnell v. Arsenault, 543 F.3d 1038, 1044 (9th Cir. 2008) (quoting United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)). The source of any alleged bias must be extrajudicial. Liteky v. United States, 510 U.S. 540. Judicial bias or prejudice formed during current or prior proceedings is insufficient for recusal unless the judge's actions "display a deep-seated favoritism or antagonism that would make fair judgment impossible." Id. at 541; Pesnell, 543 F.3d at 1044. Judicial rulings will only support a motion for recusal "in the rarest of circumstances." Liteky, 510 U.S. at 555; United States v. Chischilly, 30 F.3d 1144, 1149 (9th Cir. 1994).
For the same reasons set forth above, plaintiff lacks a reasonable factual basis for questioning Judge Mahan's impartiality. The court concludes that neither 28 U.S.C. § 455(a) nor (b) mandates recusal in this case.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the plaintiff's motion to recusal of district judge (Doc. #863) be, and the same hereby is, DENIED.