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Arpino v. Cherry

United States District Court, D. Nevada

April 10, 2018

JOHN FRANCIS ARPINO, Plaintiff,
v.
CHIEF JUSTICE MICHAEL A. CHERRY, et al., Defendants.

          ORDER

          MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         Before 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[1] (“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.

         II. MOTION TO RECUSE (ECF NO. 7)

         A. LEGAL STANDARD

         The 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.

         B. DISCUSSION

         Plaintiff 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.[2](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 recusal).

         Plaintiff 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.”).

         III. REPORT AND RECOMMENDATION (ECF NO. 9)

         A. LEGAL STANDARD

         This 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.

         B. DISCUSSION

         The 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. ยง ...


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