                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           OCT 7 2014

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

COMMODITY FUTURES TRADING                        No. 12-56521
COMMISSION,
                                                 D.C. No. 8:09-cv-00578-ODW-RZ
              Plaintiff - Appellee,

  v.                                             MEMORANDUM*

GORDON DRIVER,

              Defendant - Appellant,

  And

AXCESS AUTOMATION, LLC;
AXCESS FUND MANAGEMENT, LLC,

              Defendants.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                          Submitted September 23, 2014**



        *
             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).
Before:      W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

      Gordon Driver appeals pro se from the district court’s judgment in an action

filed by the Commodity Futures Trading Commission (“CFTC”) for violations of

the Commodity Exchange Act and related regulations arising out of an alleged

Ponzi scheme. We have jurisdiction under 28 U.S.C. § 1291. We review for plain

error a district court’s failure to recuse itself sua sponte pursuant to 28 U.S.C.

§ 455. United States v. Spangle, 626 F.3d 488, 495 (9th Cir. 2010). We affirm.

      The district court did not commit plain error by failing to recuse itself sua

sponte from hearing Driver’s requests to release previously frozen assets and the

CFTC’s motion for summary judgment. See id. (setting forth plain error standard

of review when a party does not seek recusal before the trial court). The isolated

comments by the district court upon which Driver relies to support his arguments

do not establish the bias or partiality warranting recusal. See Liteky v. United

States, 510 U.S. 540, 555 (1994) (“[J]udicial remarks during the course of . . .

[proceedings] that are critical or disapproving of, or even hostile to, counsel, the

parties, or their cases, ordinarily do not support a bias or partiality challenge.”); see

also Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d 1175, 1178 (9th

Cir. 2005) (per curiam) (in analyzing § 455(a) motions, this court “employ[s] an

objective test: whether a reasonable person with knowledge of all the facts would


                                            2                                     12-56521
conclude the judge’s impartiality might reasonably be questioned” (citation and

internal quotation marks omitted)). Moreover, “judicial rulings alone almost never

constitute a valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555.

      To the extent that Driver seeks to challenge the underlying grant of summary

judgment, we do not consider these arguments because they were not distinctly

raised or argued in his opening brief. See Smith v. Marsh, 194 F.3d 1045, 1052

(9th Cir. 1999).

      AFFIRMED.




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