Villery v. Jones

• Decision Date: 10 November 2021
• Docket Number: 1:15-cv-1360-DAD-HBK
• Court: U.S. District Court — Eastern District of California
• Parties: JARED M. VILLERY, Plaintiff, v. JAY JONES, ET. AL., Defendants.

JARED M. VILLERY, Plaintiff,
v.
JAY JONES, ET. AL., Defendants.

No. 1:15-cv-1360-DAD-HBK

United States District Court, E.D. California

November 10, 2021

ORDER DENYING MOTION TO DISQUALIFY

(DOC. NO. 151)

HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE

Pending before the Court is Plaintiff Jared Villery's motion to disqualify United States Magistrate Judge and incorporated declaration filed on September 23, 2021. (Doc. No. 151). Defendants have not filed a response and the time to do so as expired. (See docket). For the reasons set forth below, Plaintiff's motion to disqualify the undersigned is denied.

Background

Plaintiff, as a prisoner proceeding pro se, initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983. (Doc. No. 1). Plaintiff is proceeding on his First Amended Complaint (“FAC”) filed on May 26, 2017. (Doc. No. 16). The case was re-assigned to the undersigned magistrate judge on November 17, 2020. (Doc. No. 106).

Shortly after re-assignment of this case in November 2020, the undersigned held a telephonic status conference with all parties on January 20, 2021. (Doc. No. 116). Additionally, since re-assignment of the case, the undersigned has issued orders in pertinent part: (1) granting in

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part and denying in part Plaintiff's motion to modify the discovery and scheduling order (Doc. No. 118); (2) resolving Plaintiff's motion to determine the sufficiency of Defendant Nelson's responses to requests for admission (Doc. No. 124); (3) granting Plaintiff's motion for leave to file an out of time motion to compel (Doc. No. 137); (4) directing the parties to file a joint statement regarding Plaintiff's motion to compel (Doc. No. 138); (5) granting Plaintiff's motion for enlargement of time to file opposition to summary judgment motion and motion to strike (Doc. No. 141); (6) denying Plaintiff's motion to modify the discovery and scheduling order (Doc. No. 143); (7) granting in part and denying in part Plaintiff's motion to compel (Doc. No. 145); and (8) granting Plaintiff's second motion for enlargement of time to respond to the summary judgment motion (Doc. No. 149).

Plaintiff alleges the undersigned has demonstrated bias and prejudice “since being assigned to this matter on November 17, 2020.” (Doc. No. 151 at 3). Plaintiff alleges the undersigned has “treated Plaintiff with derision and hostility, while showing clear favoritism to Defendants and their counsel.” (Id.). Plaintiff refers to the teleconference hearing occurring on January 20, 2021, and claims “[t]hroughout the hearing . . . the Magistrate repeatedly implied that Plaintiff was lying about the date he submitted a motion to prison officials for mailing, about his having contracted Covid-19, and about the impact that Covid-19 had had [sic] on the operations at his facility.” (Id.). Plaintiff also refers to orders the undersigned issued February 4, 2021, April 6, 2021, May 24, 2021. (Id. at 4-5). Plaintiff's declaration, signed under the penalty of perjury, raises the same issues. (Id. at 10-11).

Legal Standard of Review

Plaintiff filed the instant motion for disqualification under 28 U.S.C. § 455(a). (Doc. No. 151 at 1). Motions for recusal are governed by 28 U.S.C. §§ 144 and 455. Section 144 requires a judge to recuse oneself if a party files an affidavit that is: (1) timely; (2) accompanied by a certificate of counsel of record stating that it was made in good faith; (3) sufficient in its allegation that the judge has a “personal bias or prejudice” against the movant. Id. In pertinent part, § 144 provides as follows:

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

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proceed no further therein, but another judge shall be assigned to hear such proceeding

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it was made in good faith

Id. As a threshold matter, the court must determine whether Plaintiff has submitted a timely and sufficient affidavit. Cal. Chamber of Commerce v. Becerra, No. 2:19-cv-02019-KJM-JDP, 2021 WL 4356038 *2 (E.D. Cal. Sept. 24, 2021). If a timely and sufficient affidavit is submitted in support of the motion, the Court then evaluates whether personal bias or prejudice exists from a reasonable person's perspective. The test for personal bias or prejudice under sections 144 and 455 are identical and the same standard is applied to both sections. United States v. Sibla, 624 F.2d 864, 867 (9th Cir. 1980). “The standard for judging the appearance of partiality requiring recusal under 28 U.S.C. § 455 is an objective one and involves ascertaining ‘whether a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.'” United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008); Preston v. United States, 923 F.2d...