United States District Court, D. Nevada
ORDER PLAINTIFFS' MOTION FOR RECUSAL (ECF NO.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
the Court is Plaintiffs' Motion for Recusal (ECF No.
400). Plaintiff requests that the Court recuse itself based
on 28 U.S.C. § 455. The Court also construes the motion
as one requesting relief under 28 U.S.C. § 144. For the
reasons stated below, the motion is denied.
28 U.S.C. § 455
Court rejects Plaintiffs' motion pursuant to 28 U.S.C.
§ 455. Under Section 455, a judge is required to
disqualify himself if “his impartiality might
reasonably be questioned” or if the case involves any
of the specific circumstances enumerated in § 455(b).
Here, Plaintiffs allege bias and impartiality by this Court,
against the pro se litigants in this case based upon various
decisions of the Court in this case. Recusal pursuant to
Section 455 is required “only if the bias or prejudice
is directed against a party and stems from an
extrajudicial source.” United States v. Sibla,
624 F.2d 864, 869 (9th Cir. 1980) (emphasis added). The only
evidence of bias referenced by the Plaintiffs involves this
Court's rulings and orders in relation to this litigation
and what has transpired within it. This is insufficient to
establish bias. The mere fact that a court rules against one
party more often than the other does not establish that the
court is biased against that party. This Court has rendered
its orders based upon the law and has not been motivated by
any bias for or against any party or participant in this
litigation. Furthermore, this case does not fall under any of
the circumstances described in § 455(b). The Court
therefore finds that Plaintiffs have failed to establish bias
under 28 U.S.C. § 455.
b. 28 U.S.C. § 144
motion also fails pursuant to 28 U.S.C. § 144 for two
reasons. First, Plaintiff Michael Sanzaro did not include a
certificate of counsel of record stating that his affidavit
was made in good faith. The plain language of Section 144
requires a certificate with statement of good faith for such
a motion to be considered. Although Plaintiffs are proceeding
pro se, the Court finds that this requirement still
applies. The purpose of this requirement is to prevent
litigant abuse of the automatic review process required by
Section 144. Morrison v. United States, 432 F.2d
1227, 1229 (5th Cir. 1970) (finding that “[t]he
requirement of the certificate by counsel is to prevent
abuse.”). Underlying this requirement is the reasonable
assumption that an attorney who is counsel of record in a
case but who is also an officer of the court would be less
likely to abuse the process because they risk facing
significant sanctions within the legal profession if they do
so. Id.; see also Mitchell v. United
States, 126 F.2d 550, 552 (10th Cir. 1942) A pro
se litigant would face no such potential professional
discipline or other sanction so the requirement-and its
intended effect to act as a safeguard against abuse-would be
rendered nugatory if pro se litigants could invoke
the mandatory review process of Section 144 without having to
satisfy the certification requirement. The Court thus finds
that the certificate requirement or some equivalent filing by
a member of the bar of the local jurisdiction is required
under Section 144. Plaintiffs have not met that requirement
and more importantly, Plaintiffs have not presented an
affidavit that is legally sufficient as to its assertion of
bias. Bias under § 144 must also be both personal, i.e.,
directed against the party, and extrajudicial.
Sibla, 624 F.2d at 869. The judge against whom the
affidavit has been filed has the ability to review the legal
sufficiency of the affidavit before proceeding no further in
the case and transferring it to another judge for review.
United States v. Montecalvo, 545 F.2d 684, 685 (9th
Cir. 1976). In this case, Plaintiff's affidavit does not
aver bias that stems from an extrajudicial source.
Sibla, 624 F.2d at 868 (9th Cir. 1980) (affirming
challenged judge's denial of Section 144 motion because
motion did not allege bias from an extrajudicial source).
Plaintiff's affidavit focuses on this Court's rulings
regarding the dismissal of former parties, denying review of
a motion for reconsideration, and striking a jury demand as
alleged indications of bias or prejudice against the
Plaintiffs as pro se parties. Plaintiff has not
referenced in his affidavit any evidence that any of these
rulings stemmed from an extrajudicial source and resulted in
“an opinion on the merits on some basis other than what
the judge learned from his participation in the case.”
United States v. Grinnell Corp., 384 U.S. 563, 583
(1966). “Adverse rulings do not constitute the
requisite bias or prejudice of § 144.” United
States v. Azhocar, 581 F.2d 735, 739 (9th Cir. 1978).
Plaintiff has failed to set forth a legally sufficient
affidavit, and Plaintiffs' motion under 28 U.S.C. §
144 is denied without further review.