Mattingly v. Justice

Background

Defendant filed a document titled “Notice with leave to set aside attach[ed] Order for good cause, Title 28 USC § 455.” The attached order was the court’s corrected order denying Defendant’s motion for permission to proceed on appeal without paying filing fees.

Court’s Analysis

The court explained that, to the extent Defendant was challenging the denial of permission to proceed on appeal without paying filing fees, he had to seek relief in the Ninth Circuit rather than in the district court. The court cited Federal Rule of Appellate Procedure 24(a)(5), which provides a procedure for seeking that relief in the court of appeals after a district court denies the request.

The court said it was unclear whether Defendant sought any other relief. To the extent Defendant argued that the court should have been or should be disqualified under 28 U.S.C. § 455, the court found no basis for that position. Section 455 requires a judge to disqualify himself when his impartiality might reasonably be questioned or when specified circumstances exist. The court cited a Supreme Court decision stating that views formed during judicial proceedings generally do not establish bias unless they show deep-seated favoritism or antagonism that would make fair judgment impossible.

Ruling

The court directed Defendant to seek relief concerning the appeal-fee denial from the Ninth Circuit, not this court. It found no basis for disqualification under § 455 and ordered accordingly. The opinion does not state a separate disposition of the notice itself beyond those rulings.