United States District Court, D. Montana, Missoula Division
Jeremiah C. Lynch United States Magistrate Judge.
January 30, 2016, Plaintiff Kermit Poulson filed a motion
requesting that I recuse myself from presiding over this
action. In support of his motion Poulson believes I
improperly allowed a prior civil action he filed to proceed
in the Missoula Division of this Court which he believes was
the wrong division. Additionally, Poulson asserts I have
issued rulings in his prior civil cases improperly influenced
by partiality and bias. Poulson, however, provides no further
explanation of his grounds for the motion.
motion to recuse must be decided by the judge whose
impartiality is being questioned. In re Bernard, 31
F.3d 842, 843 (9th Cir. 1994). For the reasons
stated, Poulson's motion is denied.
Poulson does not identify an express statutory basis for his
motion, I will construe it as a motion for my
disqualification under 28 U.S.C. § 455.Section 455 is a
self-executing disqualification statute. It provides in
relevant part as follows:
(a) Any justice, judge or magistrate judge of the United
States shall disqualify himself in any proceeding in which
his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding[.]
28 U.S.C. § 455(a) and (b).
455(a) requires disqualification for the appearance of
partiality. Section 455(b)(1), in contrast, requires
disqualification if a judge has a personal bias or prejudice
for or against a party. See Hasbrouck v. Texaco,
Inc., 842 F.2d 1034, 1045-46 (9th Cir. 1987).
Section 455(b)(1) “simply provides a specific example
of a situation in which a judge's ‘impartiality
might reasonably be questioned' pursuant to section
455(a).” United States v. Sibla, 624 F.2d 864,
867 (9th Cir. 1980) (quoting United States v.
Olander, 584 F.2d 876, 882 (9th Cir. 1978)).
matters under § 455(a) “is not the reality of bias
or prejudice but its appearance.” Liteky v. United
States, 510 U.S. 540, 548 (1994). The test for
disqualification under § 455(a) is an objective one,
pursuant to which recusal is appropriate if “a
reasonable person with knowledge of all the facts would
conclude that the judge's impartiality might reasonably
be questioned.” United States v. Hernandez,
109 F.3d 1450, 1453 (9th Cir. 1997).
“reasonable third-party observer” is not
“hypersensitive or unduly suspicious, ” and
“is not a ‘partly informed
man-in-the-street[.]'” United States v.
Holland, 519 F.3d 909, 914 (9th Cir. 2008).
Rather, the reasonable person is a “well-informed,
thoughtful observer, ” and “someone who
‘understands all the relevant facts' and has
examined the record and the law.” Holland, 519
F.3d at 914. It is important that this standard
“‘not be so broadly construed that it becomes, in
effect, presumptive, so that recusal is mandated upon the
merest suggestion of personal bias or prejudice.'”
Holland, 519 F.3d at 913 (quoting United States
v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)).
well-established that disqualification under § 455(a) is
limited by the extrajudicial source doctrine, “which
generally requires as a basis for recusal something other
than rulings, opinions formed or statements made by the judge
during the course of trial.” Holland, 519 F.3d
at 914. Under this doctrine, “judicial rulings alone
almost never constitute a valid basis for a bias or
partiality motion.” Liteky, 510 U.S. at 555.
“[O]nly in the rarest circumstances” will
judicial rulings “evidence the degree of favoritism or
antagonism required when no extrajudicial source is
involved.” Liteky, 510 U.S. at 555.
“opinions 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.” Liteky, 510 U.S. at 555.
Absent any extrajudicial source, a judge's
“favorable or unfavorable predisposition” will be
characterized as bias or prejudice only “if it is so
extreme as to display clear inability to render fair
judgment.” Liteky, 510 U.S. at 551.
are not to recuse themselves lightly under §
455(a)” and should participate in cases assigned if
there is no legitimate reason for recusal. United States
v. Sierra Pacific Industries, 2010 WL 4777842 *6 (E.D.
Cal. 2010) (quoting United States v. Synder, 235
F.3d 42, 45 (1st Cir. 2000)); Holland,
519 F.3d at 912. In other words, judges “must not
simply recuse out of an abundance of caution when the facts
do not warrant recusal. Rather, there is an equally