Tanesha Blye v. Alex Kozinski , 466 F. App'x 650 ( 2012 )

FILED
JAN 20 2012
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TANESHA BLYE, et al., No. 10-17032
Plaintiffs-Appellants, D.C. No. 3:10-cv-02014-SI
v.
MEMORANDUM*
ALEX KOZINSKI, et al.,
Defendants-Appellees.
Appeal from The United States District Court
for the Northern District Of California
Susan Illston, District Judge, Presiding
Submitted November 14, 2011**
San Francisco, California
Before: HAWKINS and M. SMITH, Circuit Judges, and DUFFY, District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
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Tanesha Blye, et al. (“Appellants”), represented by attorney Joseph R.
Giannini (“Giannini”) appeal the district court’s dismissal of the case. Appellants
first allege that Judge Illston abused her discretion in declining to recuse herself
from the instant case after she concluded that it was related to Paciulan v. George,
38 F. Supp. 2d 1128 (N.D. Cal. 1999), over which she also presided. Second,
Appellants contend that the district court absued its discretion in finding that
Giannini failed to comply with the requirements of the 1999 pre-filing order in
Paciulan, which formed the basis of both 1) Judge Walker’s denial of Appellants’
application for leave to file the complaint, and 2) Judge Illston’s dismissal of the
complaint. As the facts and procedural history are familiar to the parties, we do
not recite them here except as necessary to explain our disposition. We have
jurisdiction under 28 U.S.C. § 1291 and we AFFIRM.
DISCUSSION
1. District Judge Illston Did Not Abuse Her Discretion in Declining
to Recuse Herself From the Case
Appellants contend that the district court’s prior adjudication of
Giannini’s similar cases gives an appearance of questionable impartiality and
amounts to personal bias on the part of Judge Illston under 28 U.S.C. §§ 144 and
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455(a). The two provisions, which are substantively the same, see United States v.
Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997), require disqualification when the
judge’s impartiality might reasonably be questioned. 28 U.S.C. § 455(a). The test
for whether a judge abused her discretion in failing to recuse herself from the case is
objective: “whether a reasonable person with knowledge of all the facts would
conclude that the judge’s impartiality might reasonably be questioned.” Datagate,
Inc. v. Hewlett-Packard Co., 941 F.2d 864, 870 (9th Cir. 1991) (citation omitted). In
undertaking this inquiry, it “is critically important . . . to identify the facts that might
reasonably cause an objective observer to question [the judge’s] impartiality.”
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865 (1988).
Here, Appellants identify no such facts. That Judge Illston merely
presided over previous related proceedings is not a basis for recusal. See United
States v. Johnson, 610 F.3d 1138, 1148 (9th Cir. 2010) (holding that the fact that a
district judge presided over the litigants’ prior civil case, in and of itself, was not a
basis for recusal in a later proceeding). Indeed, the Supreme Court has held “that
judicial rulings or information acquired by the court in its judicial capacity will
rarely support recusal.” Id. at 1147 (citing Liteky v. United States, 510 U.S. 540, 555
(1994)). Further, the Court explained that “‘opinions formed by the judge on the
basis of facts introduced or events occurring in the course of the current proceedings,
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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. (quoting Liteky, 510 U.S. at 555). Morever, “‘expressions of
impatience, dissatisfaction, annoyance, and even anger’ are not grounds for
establishing bias or impartiality, nor are a judge’s efforts at courtroom
administration.” Pesnell v. Arsenault, 543 F.3d 1038, 1044 (9th Cir. 2008) (quoting
Liteky, 510 U.S. at 555-56). Accordingly, Appellants’ claim fails because they have
not demonstrated that Judge Illston’s denial of their recusal motion represented any
clear error in judgment; Appellants identify no facts to support a conclusion that
Judge Illston’s impartiality may reasonably be questioned.
2. The District Court Did Not Abuse Its Discretion in Finding That
Giannini Failed to Comply With the Requirements of the 1999 Pre-
Filing Order
Appellants contend that Chief Judge Walker abused his discretion in
denying leave to file the complaint in this case and also that Judge Illston abused her
discretion in dismissing the complaint based on Giannini’s failure to comply with
the 1999 pre-filing order.1 Both of these arguments fail.
1
Appellants also appear to contest the validity of the 1999 pre-filing order itself;
however, this argument is waived because of Appellants’ failure to raise the issue before
the district court. See Art Attacks Ink, LLC v. MGA Enter. Inc., 581 F.3d 1138, 1143 (9th
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Judge Walker denied Giannini’s application for leave to file the
complaint because Giannini “fail[ed] to present the court with a single factual or
legal matter his proposed new action would include that he has not asserted
previously before another court,” and because Giannini could not show that the
claims were not frivolous or made in bad faith. Order Denying Application for
Admission, No. 3:98-cv-01201-51, at 5 (N.D. Cal. Apr. 2, 2010). Giannini has not
demonstrated that this finding was clearly erroneous, as the instant case relies on the
same arguments rejected in prior proceedings, which notably precipitated the 1999
pre-filing order. Appellants’ contentions of purported “revolutionary factual
allegations and seismic changes in the law,” do not alter this analysis.
Further, Judge Illston did not abuse her discretion in dismissing the complaint
because Appellants failed to obtain the prerequisite leave to file their complaint
pursuant to the terms of the 1999 pre-filing order. Appellants’ contention that they
received implicit permission to proceed with this case because their complaint was
docketed by the district clerk’s office lacks any merit, given that Judge Walker
explicitly denied them leave to file a complaint. Accordingly, Appellants have not
demonstrated that Judge Illston’s decision to dismiss the case because of Giannini’s
Cir. 2009) (finding that the litigant waived his non-jurisdictional argument on appeal
because of a failure to raise it before the district court).
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failure to obtain the prerequisite leave of court was clearly erroneous.
AFFIRMED.
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