Stigall v. Day

Full title: ARTHUR STIGALL, Plaintiff, v. MARILYN W. DAY, et al., Defendants

Court: United States District Court, E.D. California

Date published: Feb 23, 2001

NO. CIV. S-00-429 LKK/GGH PS (E.D. Cal. Feb. 23, 2001)

Opinion

NO. CIV. S-00-429 LKK/GGH PS

February 23, 2001

ORDER

LAWRENCE K. KARLTON, Senior, U.S. District Judge

Plaintiff moves to recuse the undersigned on the grounds of bias and prejudice, see 28 U.S.C. § 455 (a), (b)(1), and incompetence. See 28 U.S.C. § 372 (c)(1). I decide that matter on the papers and pleadings filed herein and without oral augment. See L. R. 78-230(h).

Pursuant to statute, a recusal motion is assigned to another judge for determination if the presiding judge finds that the moving party's declaration is sufficient. See 28 U.S.C. § 144; United States v. Azhocar, 581 F.2d 735 (9th Cir. 1978), cert. denied, 440 U.S. 907 (1979) (citing Berger v. United States, 255 U.S. 22, 32-34 (1922)). Only after the legal sufficiency of the affidavit is determined does it become the duty of the presiding judge to "proceed no further" in the case. See United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976). Based on the analysis below, I conclude that plaintiff's declaration is insufficient to support his motion for recusal.

First, plaintiff argues that the undersigned is biased towards the government in tax cases. In an affidavit seeking to disqualify trial judge on the grounds of personal bias or prejudice, the affiant has the burden of making a three-fold showing: the facts must be stated with particularity; the facts must be such that, if true they would convince a reasonable man that a bias exists; and the facts must show the bias is personal, as opposed to judicial. See United States v. Thompson, 483 F.2d 527 (3d Cir. 1973). In support of his motion, plaintiff cites to his lack of personal knowledge about whether the undersigned has ever ruled in favor of a taxpayer and comments of the undersigned in a tax case in 1995. These facts alone are insufficient to demonstrate personal bias against taxpayers. See id.

Next, plaintiff argues that the undersigned is incompetent. A complaint for recusal due to mental incompetence shall be filed with the Clerk of the Ninth Circuit Court of Appeals along with a brief statement of the fact supporting such an allegation. See 28 U.S.C. § 372 (c). A motion under 28 U.S.C. § 144, however, is not the proper vehicle for seeking a recusal due to incompetence.

Accordingly, the court hereby DENIES plaintiff's motion for recusal.

IT IS SO ORDERED.