United States District Court, W.D. Washington, Tacoma
ORDER REGARDING MOTION FOR RECUSAL
L. Strombom United States Magistrate Judge
Terrance Jon Irby moves to recuse the undersigned. Plaintiff
argues that the undersigned failed to recognize that he was
in imminent danger and wrongfully denied his requests to join
the Washington State Governor in this action and to provide
him a copy of the local rules. Dkt. 47.
filed this lawsuit on March 31, 2015. Dkt. 1. On April 28,
2015, the undersigned recommended that plaintiff's
application to proceed in forma pauperis be denied
because he had at least three 28 U.S.C. § 1915 strikes.
Dkt. 12. The recommendation was adopted and plaintiff was
directed to pay the Court's filing fee. Dkt. 15.
Plaintiff appealed and on September 18, 2015. Dkt. 1. On
February 28, 2017, the Ninth Circuit held that one of the
§ 1915 strikes (dismissal based on the Younger
doctrine) should not have been counted as a strike based on
intervening authority. Dkt. 32. The Ninth Circuit did not
address plaintiff's claim that he was in imminent danger.
re-referral of this case to the undersigned, the Court
granted plaintiff's application to proceed in forma
pauperis (Dkt. 41) and directed the Clerk to serve
plaintiff's complaint (Dkt. 43). The Court denied
plaintiff's motions to join Governor Inslee, to join an
already named party, and to consolidate. Dkt. 44. The Court
also advised plaintiff that if he wished to obtain a copy of
the Court's local rules, he could obtain them through the
clerk's office. Id., p. 1.
March 26, 2017, plaintiff filed a motion to appoint counsel
(Dkt. 45) and a motion for the local court rules (Dkt. 46).
The motions are noted for April 14, 2017. Id.
to 28 U.S.C. § 455(a), a judge of the United States
shall disqualify herself in any proceeding in which her
impartiality “might reasonably be questioned.” A
federal judge also shall disqualify herself in circumstances
where she has a personal bias or prejudice concerning a party
or personal knowledge of disputed evidentiary facts
concerning the proceeding. 28 U.S.C. § 455(b)(1).
Pursuant to 28 U.S.C. § 144:
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse
party, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.
both 28 U.S.C. §144 and 28 U.S.C. § 455, recusal of
a federal judge is appropriate if “a reasonable person
with knowledge of all the facts would conclude that the
judge's impartiality might reasonably be
questioned.” Yagman v. Republic Insurance, 987
F.2d 622, 626 (9th Cir.1993). This is an objective inquiry
concerned with whether there is the appearance of bias, not
whether there is bias in fact. Preston v. United
States, 923 F.2d 731, 734 (9th Cir.1992); United
States v. Conforte, 624 F.2d 869, 881 (9th Cir.1980). In
Liteky v. United States, 510 U.S. 540
(1994), the United States Supreme Court further explained the
narrow basis for recusal:
[J]udicial rulings alone almost never constitute a valid
basis for a bias or partiality motion. . . . [O]pinions
formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or
of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep seated
favoritism or antagonism that would make fair judgment
impossible. Thus, judicial remarks during the course of a
trial that are critical or disapproving of, or even hostile
to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.
Id. at 555. This Court makes rulings in each case
based upon the issues presented by the parties or upon
sua sponte review by the Court. The undersigned has
no personal bias or reason to be partial to one side or the
other in this matter. The undersigned finds no reason to
recuse herself voluntarily from this case and declines to do
is no reasonable basis for a voluntary recusal in this
instance. However, plaintiff's motion shall be referred
to the Chief Judge for a determination of its merits. Local
Rules W.D. Wash. 3(e). Accordingly, the undersigned DECLINES
to recuse voluntarily. Plaintiff's motion for recusal of
the undersigned is REFERRED to Chief Judge Ricardo Martinez
for decision and the Clerk of the ...