United States District Court, D. Oregon, Portland Division
SAMUEL W. WANI, Plaintiff,
GEORGE FOX UNIVERSITY; GREGG BOUGHTON; and CHRIS Y, Defendants.
OPINION & ORDER
Yim You United States Magistrate Judge.
Samuel Wani (“Wani”), proceeding pro se,
has filed a motion for reconsideration (ECF #224) of this
court's March 25, 2019 opinion and order granting summary
judgment on his remaining claims against defendants George
Fox University, Gregg Boughton, and Chris Casey (ECF #221)
and resulting judgment (ECF #222). The court finds that this
matter is suitable for decision without oral argument
pursuant to LR 7-1(d)(1). For the reasons discussed below,
the motion for reconsideration is DENIED.
Motion for Recusal
motion for reconsideration, Wani asks that “this case
get transferred” to another judge. Mot. Recon. 6, ECF
#224. Wani alleges that:
The very first time I was in your court room,  Honorable.
Magistrate Judge Youlee Yim, the first thing you said to me
was my tone on my writing and how should feel lucky you
didn't dismiss my case following my refusal to produce my
medical records to the defendants after I referred to Doctor
Croy as a criminal as well as warning the counsels about
touching my medical records without obtaining my permission
first and executing the proper subpoenas.
Mot. Recon. 2, ECF #224. Based on these unsupported
allegations, Wani argues that: “At this point it would
simply make sense for this case to get transferred to a judge
that is not so blind to justice at this point it's no
longer the absence, pretendness [sic] and ignorance to true
justice.” Id. at 6.
does not explicitly move for recusal; however, because he is
proceeding pro se, the court construes his pleadings
liberally. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (“A document filed pro se is to be
liberally construed.”) (internal quotation marks and
citations omitted). The court, therefore, examines Wani's
request for recusal under 28 U.S.C. §§ 144 and 455,
the two statutes that govern such requests. See
U.S. v. Odachyan, 749 F.3d 798, 801 (9th Cir. 2014)
(noting that 28 U.S.C. §§ 144 and 455 define when a
judge must recuse herself due to personal bias).
U.S.C. § 144 provides that a judge “shall proceed
no further” when presented with a “timely and
sufficient affidavit that the judge before whom the matter is
pending has a personal bias or prejudice.” Once a
sufficient affidavit has been filed, a different judge shall
be assigned to hear the proceeding. Id. In order to
be “sufficient, ” the affidavit “shall
state the facts and the reasons for the belief that bias or
prejudice exists, ” and must be accompanied by a
certificate of counsel of record stating that it is made in
good faith. Id. The affidavit “shall be filed
not less than ten days before the beginning of the term at
which the proceeding is to be heard, ” unless good
cause is shown for failure to file within such time.
Id. The Ninth Circuit has repeatedly held that the
challenged judge should rule on the sufficiency of a section
144 motion. See, e.g., United States v.
Studley, 783 F.2d 934, 940 (9th Cir. 1986); United
States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978).
Here, Wani has not filed any affidavit in support of his
request for recusal. Additionally, the request is untimely,
and Wani has shown no good cause for his failure to comply
with the time requirement.
request also fails to satisfy 28 U.S.C. § 455, which
requires that a judge shall recuse “where he has a
personal bias or prejudice concerning a party.” Where
the source of alleged bias or prejudice is a judicial
proceeding, the party must show a disposition on the part of
the judge that “is so extreme as to display clear
inability to render fair judgment.” Liteky v.
U.S., 510 U.S. 540, 551 (1994). “The test 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.
Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000) (quoting
United States v. Hernandez, 109 F.3d 1450, 1453 (9th
Cir. 1997)). Here, even accepting his allegations as true,
Wani fails to allege bias that is “so extreme” as
to demonstrate “clear inability to render fair
judgment.” Liteky, 510 U.S. at 551. Commenting
on the tone of a brief or that a claim could be dismissed for
failure to comply with discovery rules falls short of the
high standard articulated by the Supreme Court. Id.
at 555-56 (holding that bias is not established based on
expressions of impatience, dissatisfaction, annoyance, or
anger that are within the normal bounds of a judge's
ordinary courtroom administration).
a judge “must not simply recuse out of an abundance of
caution when the facts do not warrant recusal. Rather, there
is an equally compelling obligation not to recuse where
recusal in not appropriate.” United States v.
Sierra Pac. Indus., 759 F.Supp.2d 1198, 1200-01 (E.D.
Cal. 2010) (citing United States v. Holland, 519
F.3d 909, 912 (9th Cir. 2008)). Because Wani's request
for recusal is deficient under both 28 U.S.C. §§
144 and 455, it is denied.
Motion for Reconsideration
district court may reconsider its grant of summary judgment
under either FRCP 59(e) or 60(b). Sch. Dist. No. 1J,
Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262
(9th Cir. 1993). Under FRCP 59(e), the district court may
alter or amend a judgment if: (1) it is presented with newly
discovered evidence; (2) it committed clear error or made an
initial decision that was manifestly unjust; or (3) there is
an intervening change in controlling law. United
Nat'l Ins. Co. v. Spectrum Worldwide, Inc., 555 F.3d
772, 780 (9th Cir. 2009) (citing Zimmerman v. City of
Oakland, 255 F.3d 734, 740 (9th Cir. 2001)).
these factors are present. Wani has not presented any newly
discovered evidence and there has been no intervening change
in the controlling law. Wani does not explicitly argue that
the court committed clear error; however, he does argue that
“errors [were] made [in] regards to the law.”
Mot. Recon. 1, ECF #224. Nevertheless, Wani fails to identify
any specific errors of law. Instead, he renews his arguments
regarding the evidence he claims is newly discovered, but was
properly rejected by Judge Hernández because it was
not allowed under FRCP 72(b)(2). See ECF #206 and
208. Wani also appears to argue that the court's decision
is manifestly unjust. However, his argument merely consists
of unsupported allegations of bias and unfair treatment.
See Mot. Recon. 4, ECF #224 (alleging-without any
specific examples or supporting evidence-that the court
allowed defense counsel to “withhold discoverable