877 F. 2d 64 - Chia v. R F

MEMORANDUM**

We are asked to consider whether the district court abused its discretion by denying plaintiff's motion to disqualify another district court judge.

Samuel Chia ("Chia" or "appellant"), filed a complaint against the Secretary of the United States Department of the Interior, and three individual employees of that department alleging, among other claims, violation of Title VII of the Civil Rights Act of 1964. He then moved for summary judgment which was opposed by defendants who filed a cross-motion for summary judgment. Judge Thelton E. Henderson of the Northern District of California granted appellees' cross-motion for summary judgment and denied appellant's motion. Chia filed a motion for reconsideration which was construed as a motion under Fed.R.Civ.P. 60(b) and denied. Chia next filed a motion requesting Judge Henderson to disqualify himself. Judge Henderson declined to disqualify himself and referred the motion to another judge of the court for hearing and decision. Chief Judge Robert H. Peckham thereafter denied the motion for disqualification construing the motion as one made under Fed.R.Civ.P. 60(b).

Chia then sought to appeal the judgments of the district court, including the order on the disqualification issue. A motion panel of this court held that we lacked jurisdiction to consider Chia's appeal except with regard to the order denying his motion to disqualify Judge Henderson (Order of April 1, 1988).

* The only issue Chia's appeal may raise is whether or not Judge Henderson was biased in his granting of the appellees' motion for summary judgment. Chief Judge Peckham's order denying the motion of disqualification is reviewable for an abuse of discretion. Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir.1984); Cel A-Pak v. California Agricultural Labor Relations Board, 680 F.2d 664, 668 (9th Cir.), cert. denied, 459 U.S. 1071 (1982). A judge may be disqualified if there are objective reasons for a reasonable person with knowledge of all the facts to conclude that the judge's impartiality might reasonably be questioned. Leipziger, 729 F.2d at 607. An appellant must show that the judge's alleged bias or prejudice is personal as opposed to being judicial in nature. Id.

Appellant here has made no such showing. In addition, there is nothing in the record to indicate that any bias existed. Therefore, we find that Chief Judge Peckham did not abuse his discretion in denying Chia's motion for disqualification.

AFFIRMED.