Opinion
Case No. 2:14-cv-0216
08-22-2014
Anthony C. Barrett, Plaintiff, v. Algenon L. Marbley, et al., Defendants.
JUDGE PETER C. ECONOMUS
ORDER
Plaintiff, Anthony C. Barrett, a federal prisoner and also the petitioner in a prior case filed under 28 U.S.C. §2255, see Barrett v. United States, Case No. 2:11-cr-173, filed this case against the District Judge in that case, the Hon. Algenon L. Marbley, the Assistant United States Attorney in that case, Salvador A. Dominguez, attorney J. Kristin Burkett, who represented Mr. Barrett in the underlying criminal case, and Adrienne M. Larimer, a member of Ms. Burkett's law firm. Mr. Barrett claims that the defendants, collectively, defrauded him and that one or more of them maliciously prosecuted him, made misrepresentations to him, and committed perjury. He also claims a violation of his civil rights, conspiracy, and infliction of emotional distress.
Along with his complaint, Mr. Barrett filed a motion (Doc. 2) asking that the undersigned Magistrate Judge recuse himself from these and other duties in the case, citing the fact that the same Magistrate Judge was assigned to the §2255 case and had recommended that the Court dismiss the petition. That motion was denied. (Doc. 3). Subsequently, a Report and Recommendation issued recommending dismissal of the case. Mr. Barrett's objections to that Report and Recommendation are pending for decision by the assigned District Judge.
On August 13, 2014, Mr. Barrett filed an affidavit requesting recusal both for the reason he previously advanced and because the undersigned Magistrate Judge and Judge Marbley serve on the same court. There is no need to address the former ground for recusal because it has already been covered in the Court's prior order (nor any reason to address an additional ground which cites to a ruling made by Judge Marbley on a motion to appoint counsel - that was not an order issued by the Magistrate Judge and no reasonable person could conclude that it demonstrates bias or prejudice on my part). The latter ground, however, is new. Essentially, Mr. Barrett is arguing that a Magistrate Judge cannot properly sit on a case which has been filed against another judge sitting in the same location of court.
First, the motion is untimely. Requests for recusal must be made promptly after all of the facts supporting recusal are known. United States v. Patrick, 542 F.2d 381, 390 (7th Cir. 1976). Mr. Barrett was aware from the rulings made in the prior case that both Judge Marbley and this Magistrate Judge sit on the same court, yet he waited over six months (and until after a Report and Recommendation on the merits was filed) to assert these new grounds for recusal in this case. That reason alone would support a denial of his request.
However, his request also lacks merit. Courts have consistently held that "the pendency of accusations against a colleague of a judge is not alone sufficient to require recusal." See Jenkins v. Sladkus, 2004 WL 1238360, *1 (S.D.N.Y. June 3, 2004). The relationship of two judges on the same court is not "extrajudicial," and without some added evidence of bias or prejudice, it is simply not grounds for recusal. See Merritt v. Lauderbach, 2013 WL 1148418 (E.D. Mich. March 19, 2013). There is no evidence of that kind in Mr. Barrett's affidavit. His affidavit (Doc. 13), treated as a supplemental motion for recusal, is therefore denied.
MOTION FOR RECONSIDERATION
Any party may, within fourteen days after this Order is filed, file and serve on the opposing party a motion for reconsideration by a District Judge. 28 U.S.C. § 636(b)(1)(A), Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01, pt. IV(C)(3)(a). The motion must specifically designate the order or part in question and the basis for any objection. Responses to objections are due fourteen days after objections are filed and replies by the objecting party are due seven days thereafter. The District Judge, upon consideration of the motion, shall set aside any part of this Order found to be clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for reconsideration has been filed unless it is stayed by either the Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.
/s/ Terence P. Kemp
United States Magistrate Judge