The opinion
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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11 ANTHONY R. TURNER, 1:18-cv-01574-DAD-GSA-PC
12 Plaintiff, ORDER DENYING REQUEST FOR RECUSAL
OF MAGISTRATE JUDGE
13 v. (ECF No. 31.)
14 EDMUND G. BROWN, JR., et al.,
15 Defendants.
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17 I. BACKGROUND
18 Anthony Turner (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis
19 with this civil rights case pursuant to 28 U.S.C. § 1983. On September 9, 2019, Plaintiff filed a
20 request for recusal of the Magistrate Judge assigned to this case. (ECF No. 31.)
21 II. RECUSAL OF MAGISTRATE JUDGE
22 Federal law provides that “[a]ny justice, judge, or magistrate judge of the United States
23 shall disqualify himself in any proceeding in which his impartiality might reasonably be
24 questioned.” 28 U.S.C. § 455(a). Section (b) of that statute sets forth a number of additional
25 grounds for disqualification, including where the judge “has a personal bias or prejudice
26 concerning a party,” “personal knowledge of disputed evidentiary facts concerning the
27 proceeding,” where “in private practice he served as lawyer in the matter in controversy,” or “has
28 been a material witness concerning it.” Id. § 455(b).
1 A motion under § 455 is addressed to, and must be decided by, the very judge whose
2 impartiality is being questioned.” Bernard v. Coyne, 31 F.3d 842, 843 (9th Cir. 1994). “Section
3 455 clearly contemplates that decisions with respect to disqualification should be made by the
4 judge sitting in the case, and not by another judge.” Id. (quoting United States v. Balistrieri, 779
5 F.2d 1191, 1202 (7th Cir. 1985)). “[S]ection 455 includes no provision for referral of the question
6 of recusal to another judge; if the judge sitting on the case is aware of grounds for recusal under
7 section 455, that judge has a duty to recuse himself or herself.” Sibla, 624 F.2d at 868 (citing
8 see, e.g., Nicodemus v. Chrysler Corp., 596 F.2d 152, 157 & n.10 (6th Cir. 1979)).
9 Plaintiff asserts that the magistrate judge assigned to this case should be recused “due to
10 the prejudice, abuse of discretion, . . ongoing retaliation and irreparable injuries and harm
11 suffered by the Plaintiff without due process of law nor equal access to justice.” (ECF No. 31 at
12 4 ¶ 2.)
13 Plaintiff’s motion for recusal must be denied. The magistrate judge has the authority to
14 rule on pretrial matters pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 302. Plaintiff has not
15 supported his motion with any evidence that the Magistrate Judge has a personal bias against
16 Plaintiff from an extra-judicial source. A judge’s rulings while presiding over a case do not
17 constitute extra-judicial conduct. In re Focus Media, Inc., 378 F.3d at 930. Plaintiff’s
18 disagreement with the court’s rulings is not a legitimate ground for seeking disqualification.
19 III. CONCLUSION
20 Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for recusal,
21 filed on September 9, 2019, is denied.
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IT IS SO ORDERED.
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24 Dated: September 24, 2019 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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