United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
the Court are Plaintiff John Francis Arpino's Motion to
Recuse Presiding Judge under 28 U.S.C. § 455
(“Motion to Recuse”) (ECF No. 7); Plaintiff's
Request for Submission (ECF No. 8); and Magistrate Judge
Valerie P. Cooke's report and
recommendation (“R&R”) regarding
Plaintiff's application to proceed in forma
pauperis (ECF No. 9). Plaintiff filed an objection to
the R&R (ECF No. 10). For the following reasons, the
Court denies Plaintiff's Motion to Recuse and Request for
Submission and accepts and adopts the Magistrate Judge's
R&R in full.
MOTION TO RECUSE (ECF NO. 7)
substantive standard for recusal under 28 U.S.C. § 455
is “whether a reasonable person with knowledge of all
the facts would conclude that the judge's impartiality
might reasonably be questioned.” United States v.
Studley, 783 F.2d 934, 939 (9th Cir. 1986) (quoting
Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir.
1984)). Normally, the alleged bias must stem from an
“extrajudicial source.” Liteky v. United
States, 510 U.S. 540, 554-56 (1994). “[J]udicial
rulings alone almost never constitute valid basis for a bias
or partiality motion.” Id. at 555.
“[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.” Id.
requests that Judge Miranda M. Du (“the Court”)
be recused from this case as well as another case Plaintiff
filed, Arpino v. Nev. Supreme Court, et al., No.
3:17-cv-00608-MMD-VPC (“Second Action”), pursuant
to 28 U.S.C. § 455 based on allegations that the Court
is shielding corrupt officials by failing to address filings
in a timely manner.(See ECF No. 7 at 3-5.) With
respect to this case, Plaintiff argues that the Court has
failed to address Plaintiff's preliminary information
upon request to summon a United States grand jury filed
August 25, 2017 (ECF No. 1) and Plaintiff's
“judicial notice” requesting a criminal case
number filed October 10, 2017 (ECF No. 5). As for the Second
Action, Plaintiff argues that the Court has failed to address
Plaintiff's emergency request for a preliminary
injunction filed October 3, 2017 (3:17-cv-00608-MMD-VPC, ECF
No. 1-1 at 1); petition for mandamus filed October 3, 2017
(id. at 4); and motion to compel and/or show cause
filed November 6, 2017 (3:17-cv-00608-MMD-VPC, ECF No. 4).
Delays in addressing these filings do not provide grounds for
recusal because such delays are not extrajudicial.
Hulihan v. Reg'l Transp. Comm'n of S. Nev.,
No. 2:09-cv-01096-ECR-RJJ, 2011 WL 5546286, at *2-3 (D. Nev.
Nov. 14, 2011) (finding that a plaintiff's complaints
about the amount of time it took the court to rule on her
numerous motions were not extrajudicial and could not ground
also requests that this motion be heard by Judge Navarro.
(ECF No. 7 at 3.) However, the statute upon which Plaintiff
relies-28 U.S.C. § 455-does not require referral of a
motion to recuse. United States v. Kahre, No.
2:05-CR-0121-RCJ-RJJ, 2007 WL 2110500, at *2 (D. Nev. July
13, 2007); see also United States v. Jaramillo, 745
F.2d 1245, 1248 (9th Cir. 1984) (“Section 455(a) puts
the judge under a self-enforcing obligation to recuse himself
where legal grounds exist for disqualification.”).
REPORT AND RECOMMENDATION (ECF NO. 9)
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). Where a party
timely objects to a magistrate judge's report and
recommendation, then this Court is required to “make a
de novo determination of those portions of the
[report and recommendation] to which objection is
made.” Id. Mindful of the fact that the
Supreme Court has “instructed the federal courts to
liberally construe the ‘inartful pleading' of pro
se litigants, ” Eldridge v. Block, 832 F.2d
1132, 1137 (9th Cir. 1987) (citing Boag v.
MacDougall, 454 U.S. 364, 365 (1982) (per curiam)), the
Court will view Plaintiff's pleadings with the
appropriate degree of leniency.
Magistrate Judge recommended denying Plaintiff's
application to proceed in forma pauperis based on 28
U.S.C. § 1915(g). (ECF No. 9 at 1.) That statute forbids
inmates with “three strikes” from proceeding
in forma pauperis. See 28 U.S.C. §
1915(g) (“In no event shall a prisoner bring a civil
action or appeal a judgment in a civil action or proceeding
under this section if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of
serious physical injury.”); see also Andrews v.
King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005)
(describing 28 U.S.C. § ...