Thompson v. RJD CF Warden et al

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24-CV-357 TWR (DDL)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DAVID A. THOMPSON,
Plaintiff,
v.
JAMES S. HILL, et al.,
Defendants.
Case No.: 24-CV-357 TWR (DDL)
ORDER DENYING PLAINTIFF’S
MOTIONS TO RECUSE AND FOR
DISQUALIFICATION OF JUDGE
TODD W. ROBINSON UNDER 28
U.S.C. §§ 144 AND 455
(ECF No. 64)
Presently before the Court is Plaintiff David A. Thompson’s Motion to Recuse /
Motion for Disqualification of Judge Todd W. Robinson Under 28 U.S.C. §§ 144 and 455
(“Mot.,” ECF No. 64), through which “Plaintiff respectfully moves this Court for an order
disqualifying and recusing District Judge Todd W. Robinson from further proceedings in
this matter[]” because” “the Judge[’]s actions demonstrate bias and create a reasonable
question regarding his impartiality.” 	(See id. at 1.) 	Specifically, Plaintiff points to the
undersigned’s “sua sponte den[ial of] [Plaintiff’s motion for a] TRO without waiting for or
considering Plaintiff’s reply brief” and the Court’s failure to rule on several pending
motions regarding service. 	(See id. at 2.) 	According to Plaintiff, “[t]hese actions
collectively create the appearance that the Court has prejudged Plaintiff’s claims, is
refusing to allow Plaintiff a fair litigation process, and is acting in a manner favorable to
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the defendant[]s.” (See id. at 2–3.) Plaintiff invokes both 28 U.S.C. §§ 144 and 455.1 (See
generally Mot.)
“Although the substantive test for bias or prejudice is identical in sections 144 and
455, the procedural requirements of the two sections are different.” United States v. Sibla,
624 F.2d 864, 867 (9th Cir. 1980). “Section 144 expressly conditions relief upon the filing
1 	Section 144 provides:
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 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 is made in good faith.
28 U.S.C. § 144. In relevant part, (see Mot. at 8), Section 455 reads:
(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 circumstances:
(1) 	Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding; [and]
. . .
(5) 	He or his spouse, or a person within the third degree of relationship to either
of them, or the spouse of such a person:
. . .
(iii) 	Is known by the judge to have an interest that could be substantially
affected by the outcome of the proceeding;
(iv) 	Is to the judge’s knowledge likely to be a material witness in the
proceeding.
28 U.S.C. §§ 455(a), (b)(1), (b)(5)(iii)–(iv).
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of a timely and legally sufficient affidavit.” Sibla, 624 F.2d at 867 (collecting cases). “If
the judge to whom a timely motion is directed determines that the accompanying affidavit
specifically alleges facts stating grounds for recusal under section 144, the legal sufficiency
of the affidavit has been established, and the motion must be referred to another judge for
a determination of its merits.” Sibla, 624 F.2d at 867 (citing United States v. Azhocar, 581
F.2d 735, 738 (9th Cir. 1978), cert. denied, 440 U.S. 907 (1979)). 	“Section 455, on the
other hand, sets forth no procedural requirements.” Sibla, 624 F.2d at 867. “That section
is directed to the judge, rather than the parties, and is self-enforcing on the part of the
judge.” 	Id. at 867–68. 	“Moreover, section 455 includes no provision for referral of the
question of recusal to another judge; if the judge sitting on a case is aware of grounds for
recusal under section 455, that judge has a duty to recuse himself or herself.” 	Sibla, 624
F.2d at 868.
First, regarding the sufficiency of the affidavit required under Section 144, “the
affidavit must meet three requirements.” 	Azhocar, 581 F.2d at 739. 	“It must state facts
which if true fairly support the allegation that bias or prejudice stemming from (1) an
extrajudicial source (2) may prevent a fair decision on the merits.” 	Id. 	“The focus is not
only on the source of the facts and their distorting effect on a decision on the merits, . . .
but also on (3) the substantiality of the support given by these facts to the allegation of
bias[.]” 	Id. at 739–40. Because the alleged bias must stem from an extrajudicial source,
“[a]dverse rulings do not constitute the requisite bias or prejudice of § 144.” 	Id. at 739
(emphasis added) (citing Berger v. United States, 255 U.S. 22, 34 (1921); Ex parte Am.
Steel Barrel Co., 230 U.S. 35, 43–44 (1913); Chessman v. Teets, 239 F.2d 205, 215 (9th
Cir. 1956), vacated on other grounds, 354 U.S. 156 (1957); Beecher v. Fed. Land Bank,
153 F.2d 987, 988 (1945), cert. denied, 328 U.S. 871, reh’g denied, 329 U.S. 819 (1956);
In re Equitable Trust Co., 232 F. 836, 840 (9th Cir. 1916)); see also, e.g., United States v.
Holland, 519 F.3d 909, 913–14 (9th Cir. 2008) (“[T]he ‘extrajudicial source’ factor . . .
generally requires as the basis for recusal something other than rulings, opinions formed or
/ / /
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statements made by the judge during the course of trial.” (second alteration in original)
(citing Liteky v. United States, 510 U.S. 540, 554–56 (1994)).
Here, Plaintiff’s affidavit provides, in full:
(See Mot. at 4.) Because Plaintiff’s allegations of bias stem solely from the undersigned’s
actions taken within the context of this litigation, Plaintiff’s affidavit is legally insufficient,
and this Motion need not be assigned to another judge. See Azhocar, 581 F.2d at 738.
/ / /
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Turning to the merits, to obtain relief under either Section 144 or Section 455,
Plaintiff again must demonstrate that the undersigned’s alleged bias is both “(1) personal,
i.e. directed against the party, and (2) extra-judicial.” See United States v. Carignan, 600
F.2d 762, 763–64 (9th Cir. 1979) (citing Berger, 255 U.S. at 41; Azhocar, 581 F.2d at 739).
Because Plaintiff has failed to do so, see supra at 4, the Court necessarily DENIES
Plaintiff’s Motion.2 See, e.g., Davis v. Fendler, 650 F.2d 1154, 1163 (9th Cir. 1981) (“In
the absence of specific allegations of personal bias, prejudice, or interest, neither prior
adverse rulings of a judge nor his participation in a related or prior proceeding is sufficient
[to warrant recusal].”); Shore v. Mohave Cnty., 644 F.2d 1320, 1322 (9th Cir. 1981)
(affirming denial of request for new trial based on allegation of judge’s bias where “there
[wa]s no claim that the judge’s bias was based on anything other than his evaluation of the
witnesses 	and 	the 	record”); 	Azhocar, 	581 	F.2d 	at 	740 	(affirming 	district 	judge’s
determination that affidavit of bias was insufficient where the judge’s “remarks appear
/ / /
2 	For what it is worth, the undersigned assures Plaintiff that he harbors no bias or prejudice against
him. Because this case was only reassigned to the undersigned on August 15, 2025, (see ECF No. 41),
and the majority of pending motions have been set before the Honorable David D. Leshner, the
undersigned’s familiarity with this case is limited to its review of and ruling on Plaintiff’s October 17,
2025 Emergency Motion for TRO and Preliminary Injunction Under Fed. R. Civ. P. 65 (ECF No. 49),
which raised on an emergency basis an issue that was already before Judge Leshner in Defendants’ Motion
to Dismiss the Second Amended Complaint for Failure to State a Claim for Which Relief May Be Granted
(ECF No. 48). 	(Compare ECF No. 49, with ECF No. 48 at 8–12.) 	Given the emergency nature of
Plaintiff’s motion, the undersigned expeditiously denied Plaintiff’s request on the grounds that Plaintiff
had failed to demonstrate that irreparable injury was likely absent the Court ordering that Plaintiff be
housed in a single cell because there was no evidence that Plaintiff’s current cellmate was a danger to
Plaintiff. (See generally ECF No. 55.) To be clear, nothing in the Court’s ruling prevents Plaintiff from
seeking emergency relief in the future if Plaintiff is capable of making such a showing. Further, the Court
“was not required to wait for a reply brief before ruling” because Plaintiff had “failed to ‘present [a] prima
facie case[] for injunctive relief’ in [his] opening brief” and “could not raise new arguments in [his] reply
brief to establish the necessary prima facie case[.]” See Goldberg v. Barreca, 720 F. App’x 877, 878 (9th
Cir. 2018) (first and second alterations in original) (citing Fed. R. Civ. P. 1). 	Although the Court
understands that these assurances are unlikely to assuage Plaintiff, the Court endeavors to apply the law
neutrally and fairly based on the record before it. Unfortunately, by virtue of the adversarial nature of the
justice system, the Court rarely finds itself in win-win situations. 	This does not mean that the Court
harbors any animus toward the side that finds itself on the “losing” side of any particular challenge.
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likely to have been based on information properly brought to his attention in the
performance of his judicial duties”).
IT IS SO ORDERED.
Dated: January 16, 2026
___________________________
Honorable Todd W. Robinson
United States District Judge
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