                                                                             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                           NOT FOR PUBLICATION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.

                                         -1-
      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


                                           -2-
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,


                                             -3-
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

                                           -4-
             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).

                                          -5-
failure to obtain the prerequisite leave of court was clearly erroneous.

AFFIRMED.




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