The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 N.R., Case No.: 21-cv-01759-AJB-WVG
Plaintiff,
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ORDER DENYING PLAINTIFF’S
13 v. MOTION TO DISQUALIFY
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DEL MAR UNIFIED SCHOOL (Doc. No. 64)
15 DISTRICT,
Defendant.
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18 Pending before the Court is a motion to disqualify pursuant to 28 U.S.C. §§ 144 and
19 455 filed by Plaintiff N.R., proceeding pro se. (Doc. No. 64.) Having reviewed the motion,
20 the Court finds it suitable for determination without a hearing. See L. Civ. Rule. 7.1.d (“A
21 judge may, in the judge’s discretion, decide a motion without oral argument.”). For the
22 reasons set forth below, the Court DENIES Plaintiff’s motion.
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1 I. LEGAL STANDARD
2 Section 144 requires the movant to have filed “a timely and sufficient affidavit that
3 the judge before whom the matter is pending has a personal bias or prejudice either against
4 him or in favor of any adverse party.” 28 U.S.C. § 144. The presiding judge may determine
5 the legal sufficiency of the affidavit. United States v. Azhocar, 581 F.2d 735, 737–38 (9th
6 Cir. 1978). If the affidavit is deemed “sufficient,” then the motion to disqualify must be
7 referred to another judge for determination. Id. Section 144 also requires the affidavit “be
8 accompanied by a certificate of counsel of record stating that it is made in good faith.” 28
9 U.S.C. § 144.
10 Section 455 provides that a judge “shall disqualify himself in any proceeding in
11 which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The statute is
12 a self-recusal statute and enumerates several bases for disqualification. See id.
13 The Ninth Circuit has held that the “substantive standard for recusal under 28 U.S.C.
14 § 144 and 28 U.S.C. § 455 is the same: Whether a reasonable person with knowledge of
15 all the facts would conclude that the judge’s impartiality might reasonably be questioned.”
16 U.S. v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997) (per curiam) (internal alterations,
17 quotation marks, and citation omitted). The movant bears the burden of proving facts which
18 justify disqualification or recusal. Denardo v. Municipality of Anchorage, 974 F.2d 1200,
19 1201 (9th Cir. 1992).
20 II. DISCUSSION
21 Plaintiff argues this Court must disqualify itself in this matter pursuant to §§ 144 and
22 455 because the Court has personal bias and prejudice against Plaintiff and her minor son
23 and a personal bias in favor of Defendant Del Mar Unified District and its counsel’s firm.
24 Plaintiff claims the Court has failed to make an array of disclosures concerning personal
25 relationships and financial information, which in her view merits this Court’s recusal. Her
26 claims are unfounded.
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1 A. 28 U.S.C. § 144
2 To begin, the Court concludes that Plaintiff’s affidavit is insufficient for purposes of
3 § 144 because it is not accompanied by a certification of counsel stating that the affidavit
4 is made in good faith. See 28 U.S.C. § 144. Plaintiff offers no authority upon which the
5 Court can conclude that a pro se litigant’s certification satisfies the statute’s requirement.1
6 Applying the clear language of the statute, the Court finds that because Plaintiff’s affidavit
7 is not accompanied by a certificate of good faith executed by an attorney, she cannot
8 proceed pursuant to § 144.2
9 B. 28 U.S.C. § 455
10 Though not a paragon of clarity, it appears Plaintiff seeks recusal under 28 U.S.C. §
11 455 based on subsections (a), (b)(1), and (b)(4). The subsections state in relevant part:
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(a) Any justice, judge, or magistrate judge of the United States shall disqualify
13 himself in any proceeding in which his impartiality might reasonably be
questioned.
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15 (b) He shall also disqualify himself in the following circumstances:
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(1) Where he has a personal bias or prejudice concerning a party
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(4) He knows that he . . . or his spouse or minor child residing in his
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household, has a financial interest in the subject matter in controversy
19 or in a party to the proceeding, or any other interest that could be
substantially affected by the outcome of the proceeding[.]
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22 1 The Ninth Circuit has not ruled on this specific issue, and district courts are mixed as to
whether this avenue of relief is simply unavailable to pro se litigants or whether
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certification of an attorney who is not counsel of record would suffice. See Jimena v. UBS
24 AG Bank, No. CV-F-07-367 OWW/SKO, 2010 WL 2650714, at *3 (E.D. Cal. July 1, 2010)
(collecting cases). Regardless, neither alternative avails Plaintiff here.
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26 2 Even assuming Plaintiff could proceed under § 144, the Court finds her affidavit
insufficient for the reasons outlined infra § II.B. See Hernandez, 109 F.3d at 1453 (holding
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the substantive standard for recusal under § 144 and § 455 is the same).
1 28 U.S.C. § 455(a), (b)(1), (b)(4).
2 Aside from sheer speculation, Plaintiff makes no showing that would lead a
3 reasonable person to conclude that the Court’s impartiality might be questioned in this case.
4 Plaintiff’s motion suggests, without a reasonable factual basis, some conspiracy between
5 the Court, Defendant, and Defendant’s counsel. Nothing in the record supports Plaintiff’s
6 attack on the integrity of the Court. No attempt is made here to address the unfounded
7 allegations, although some will be highlighted to illustrate the point that sheer speculation
8 is all that is asserted here.
9 First, the Court finds without merit Plaintiff’s claim that its alleged failure to disclose
10 ownership of the Court’s wife and son’s law corporation establishes a bias or prejudice in
11 this case. Even if the Court had ownership in the firm (it does not3), Plaintiff does not
12 explain how the family members’ firm have any bearing on, or interest in, the outcome of
13 this case. Plaintiff would have the Court find that on some unspecified circumstance its
14 family members’ law firm and Defendant’s firm have a business relationship, and as a
15 result, the Court cannot be impartial in this matter. The family members’ firm handles trusts
16 and estate matters, including special needs trusts for disabled individuals. They do not
17 represent school districts, county agencies, or litigate IDEA claims. Mere coincidences do
18 not give rise to inferences of bias or prejudice.
19 Second, the Court similarly finds unavailing Plaintiff’s attempt to establish her
20 conspiracy claim by pointing to the Court’s association with: (1) its daughter-in-law, a
21 Senior Deputy Counsel for the County of San Diego, (2) the San Diego County District
22 Attorney, Summer Stephan (“Stephan”), (3) one of Del Mar School District’s board
23 members, Doug Rafner (“Rafner”), (4) one of the partners of Defendant’s counsel’s firm,
24 Daniel Shinoff (“Shinoff”), and (5) a former extern (a volunteer law student who spent a
25 semester with the Court and had nothing to do with this case) of the Court. In Plaintiff’s
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3 As a judicial officer, who handles a full civil case load and a 70% criminal case load, the
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Court cannot practice law nor hold direct ownership in a law firm.
1 view, because the Court is associated with government attorneys like the Court’s daughter-
2 in-law and Stephan, who has worked with Rafner and has not responded to Plaintiff’s
3 letters complaining about Shinoff, who at one time hosted a fundraiser for her and was
4 once law partners with the father of one of the Court’s former externs, the Court has a bias
5 in favor of Defendant and its counsel’s firm. The gaps between Plaintiff’s suppositions are
6 too great, and she provides no evidence to bridge them. The purported links between these
7 associations are simply not there. Again, Plaintiff cannot rely merely on happenstance to
8 impugn the Court’s impartiality.
9 Third, Plaintiff’s claims of purported irregularities over financial disclosures and
10 case reports are also without merit. Plaintiff offers no explanation linking the alleged
11 irregularities to any bias or prejudice on the Court’s part. Instead, Plaintiff repeats the same
12 disagreements she has previously expressed over the Court’s prior rulings, specifically on
13 her failure to exhaust her administrative remedies. Judicial rulings, however “almost never
14 constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S.
15 540, 555 (1994). Plaintiff presents no argument or evidence to warrant departure from this
16 general rule. The Court makes clear it harbors no personal bias or prejudice, one way or
17 the other, towards Plaintiff or Defendant. Throughout the proceedings, the Court has given
18 due consideration to motions filed by both parties and afforded Plaintiff, due to her pro se
19 status, considerable leeway—granting her, inter alia, ample time to find counsel, repeated
20 extension of deadlines, and access to electronically file documents.
21 In the end, the Court is faced with a motion to disqualify which lodges accusations
22 of bias and prejudice based solely on coincidental connections. Conclusory allegations
23 devoid of specific facts tending to show personal bias are insufficient to support a motion
24 for recusal. See, e.g., United States v. Sibla, 624 F.2d 864, 869 (1980). It would thus be an
25 untenable stretch for a reasonable person with knowledge of the all the facts of this case to
26 question the Court’s impartiality. Indeed, a reasonable person in this context means “a well-
27 informed, thoughtful observer as opposed to a hypersensitive or unduly suspicious person.”
1 || Clemens vy. U.S. District Court for the Central District of Ca., 428 F.3d 1175, 1178 (9th
2 || Cir. 2005) (citations and internal quotations omitted). Plaintiff's showing does not meet
3 reasonable person standard. See Hernandez, 109 F.3d at 1453. Simply put, there is no
4 || demonstrated bias or prejudice requiring recusal in this case.
5 CONCLUSION
6 Accordingly, for the foregoing reasons, the Court DENIES Plaintiff's motion to
7 || disqualify pursuant to 28 U.S.C. §§ 144 and 455.
8 IT IS SO ORDERED.
? |! Dated: September 12, 2023 | □□ rz □ Ze
10 Hon, Anthony J.Battaglia
11 United States District Judge
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