United States District Court, D. Oregon, Portland Division
FRANK E. VOTH, Plaintiff,
SUPERINTENDENT AMISBERRY, et al., Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE
November 21, 2016, Frank E. Voth (“Voth”), an
inmate at Two Rivers Correctional Institution
(“TRCI”), filed, among other things, a Complaint
alleging civil rights violations and an Application to
Proceed In Forma Pauperis
(“IFP”). Judge Simon denied Voth's
Application to Proceed IFP on December 6, 2016. Several days
later, Voth appealed the denial of his IFP application to the
Ninth Circuit. On January 17, 2017, while his appeal to the
Ninth Circuit was still pending, Voth moved for
reconsideration of the Order denying his IFP application. On
February 7, 2017, Judge Simon concluded this Court lacked
jurisdiction to consider Voth's motion for
reconsideration of the Order denying his IFP application
while the appeal of the Order was pending in the Ninth
Circuit. Voth subsequently moved to disqualify Judge Simon
from this action, and Judge Simon referred the
disqualification motion to me. After careful consideration, I
find no basis for Voth's allegations that Judge Simon
would not be a fair or impartial decision maker or engaged in
prejudicial conduct; therefore, I DENY Voth's Motion and
Verification to Disqualify Judge Michael H. Simon .
standard for recusal under 28 U.S.C. § 144 is
“whether a reasonable person with knowledge of all the
facts would conclude that the judge's impartiality might
reasonably be questioned.” U.S. v. Nelson, 718
F.2d 315, 321 (9th Cir. 1983); U.S. v. McTierman,
695 F.3d 882, 891 (9th Cir. 2012). Put another way, the
standard requires recusal if a reasonable third-party
observer would perceive there is a “significant
risk” that the judge would resolve the case on a basis
other than the merits. Liljeberg v. Health Serv.
Acquisition Corp., 486 U.S. 847, 860 (1988). “The
reasonable person in this context means a well-informed,
thoughtful observer, as opposed to a hypersensitive or unduly
suspicious person.” Clemens v. U.S. Dist. Court for
the Central Dist. of Nevada, 428 F.3d 1175 (9th Cir.
2005). The goal is to avoid “even the appearance of
partiality.” Liljeberg, 486 U.S. at 860.
motion to disqualify, Voth asserts Judge Simon “has
allowed the defendants to influence his judicial judgment and
deny plaintiff's ‘Motion for Reconsideration'
under FRCP 60(b)(6) [on the grounds] plaintiff only had
'28 days' to file said motion” even though Rule
60 only requires a motion for reconsideration be made
“within a reasonable time.” (Dkt. no. 16
at ECF p. 2 (emphasis in original)). Voth misreads
Judge Simon's Order. First, Judge Simon did not deny
Voth's motion for reconsideration, instead, he concluded
this Court lacked jurisdiction to consider Voth's motion.
Next, Judge Simon based his conclusion on the 28-day time
limit for filing a motion under Federal Rules of Civil
Procedure 60 set out in the Rules of Appellate Procedure, not
the discretionary “within a reasonable time”
limit for such a motion contained in the Federal Rules of
Civil Procedure 60(c)(1).
Simon's Order noted once a party files a notice of
appeal, as Voth did after the denial of his application to
proceed IFP, “the district court is generally divested
of jurisdiction over the matters being appealed.” (Dkt.
no. 14 at 2 (citations omitted)). Judge Simon, however,
continued his inquiry of whether he had jurisdiction to
consider Voth's motion to reconsider, recognizing the
Rules of Appellate Procedure give the district court
jurisdiction to consider Rule 60 motions filed within 28 days
after the judgment is entered. (Id. at 3
(“Pursuant to Fed. R. App. P. 4(a)(4)(iv), a motion
filed under Fed.R.Civ.P. 60 must be filed within 28 days
after the judgment is entered in order to have the effect of
holding the pending notice of appeal in abeyance.”)).
construing Voth's motion as being brought under Federal
Rules of Civil Procedure 60, Judge Simon correctly stated
that for Voth's motion to be timely under the Federal
Rules of Appellate Procedure he would have had to deliver it
to prison authorities for mailing by January 3, 2017.
(Id. at 4). As Judge Simon observed, because Voth
did not sign his motion until January 4, 2017, “it
defies logic that he could have timely delivered it to prison
authorities for mailing.” (Id.). Thus, Judge
Simon determined Voth's motion did not hold his Notice of
Appeal in abeyance, and this Court lacked jurisdiction to
reconsider the Order denying Voth's IFP application.
the record here reflects Judge Simon acted impartially and
without any prejudice, giving careful consideration to
Voth's motion and drawing all possible inferences in
Voth's favor. For example, Judge Simon construed
Voth's motion as being brought under Rule 60, one of the
types of motions that hold a notice of appeal in abeyance if
filed within the required 28-day time period. No reasonable
person with knowledge of the above described facts would
“perceive any risk” that Judge Simon resolved
Voth's motion for reconsideration on a basis other than
the jurisdictional requirements proscribed in the Federal
Rules of Appellate Procedure. Liljeberg, 486 U.S. at
860. There is no appearance of partiality here. Id.
these reasons, I DENY Voth's Motion and Verification to
Disqualify Judge Michael H. Simon .
 Plaintiff's Motion and
Verification to Disqualify Judge Michael Simon consists of
three documents - the Motion, a Statement of Facts, and a
“Verification” supporting the Motion. However,
the Clerk of the Court filed these three documents as one
document. Reference to the page ...