Opinion
Civil Action No. 03-2850 C/W 03-2849, Section "N" (5).
February 3, 2005
ORDER AND REASONS
Plaintiff, Johnny L. Duncan, a pro se litigant, has filed a Motion for Disqualification of Magistrate Judge Alma Chasez pursuant to 28 U.S.C. § 455(a), (b)(1) and (d). For the reasons stated herein, plaintiff's motion is DENIED.
Plaintiff contends that Magistrate Judge Chasez should be disqualified herein for the following reasons: (1) at a status conference, Magistrate Judge Chasez inquired as to the amount of damages suffered by plaintiff, and allegedly described that amount as "minimal damage" in her conversation with plaintiff and defense counsel; (2) the Magistrate Judge suggested to plaintiff and defense counsel that the filing of dispositive motions might be in order with regard to some of plaintiff's claims; (3) the Magistrate Judge allegedly set a defense Motion to Compel for hearing and oral argument on December 8, 2004, some 28 days after the status conference during which it was set, and for which plaintiff admittedly filed an opposition on December 2, 2004; (4) the Motion to Compel was never served on plaintiff by defense counsel; (5) the Magistrate Judge is not impartial; (6) the Magistrate Judge scheduled a Spears hearing for February 24, 2005; and because defendants allegedly have failed to respond to plaintiff's discovery.
Plaintiff cites and relies on the following provisions of Title 28:
§ 455. Disqualification of justice, judge, or magistrate judge
(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(d) For the purposes of this section the following words or phrases shall have the meaning indicated:
(1) "proceeding" includes pretrial, trial, appellate review, or other stages of litigation;
(2) the degree of relationship is calculated according to the civil law system;
(3) "fiduciary" includes such relationships as executor, administrator, trustee, and guardian;
(4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:
(i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund;
(ii) An office in an educational, religious, charitable, fraternal, or civic organization is not a "financial interest" in securities held by the organization;
(iii) The proprietary interest of a policyholder in a mutual insurance company, of a depositor in a mutual savings association, or a similar proprietary interest, is a "financial interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest;
(iv) Ownership of government securities is a "financial interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
None of these provisions are remotely applicable herein.
As an initial matter, the undersigned notes that the alleged failure of defense counsel to serve a Motion to Compel on plaintiff is not an act or omission by the Magistrate Judge which would give rise to any grounds for disqualification. The same can be said of the alleged failure of defendants to respond to plaintiff's discovery. Those complaints are best directed against defendants, by appropriate motion before the Magistrate Judge, who can then determine what relief, if any, is warranted.
As for the remainder of plaintiff's asserted grounds for disqualification, none of the alleged actions by Magistrate Judge Chasez constitute grounds for disqualification or recusal. Quite to the contrary, all of the described actions of the Magistrate Judge are indeed part of her responsibilities, and her conduct as outlined by Mr. Duncan is in full compliance not only with such responsibilities, but with the expectations of the undersigned. Specifically, according to plaintiff, the Magistrate Judge convened a status conference at which time she allegedly described plaintiff's damages as "minimal", and suggested that perhaps the filing of dispositive motions might streamline litigation of this matter, if granted by the undersigned. The Magistrate Judge's handling of this status conference in such fashion is not only a routine practice, but one desired, as it contributes to the streamlining of issues to ultimately be tried before the Court.
Plaintiff alleges that at the November 10, 2004 status conference, Magistrate Judge Chasez fixed the defendants' Motion to Compel for December 8, 2004. Plaintiff claims he was not served with the Motion to Compel, but then admits, in Paragraph 5 of his Motion, that he filed his opposition with the Court on December 2, 2004. The record further reflects that the Court provided Mr. Duncan with a copy of the Magistrate Judge's Minute Entry indicating that oral argument on such motion would be held on December 8, 2004. Plaintiff was therefore given adequate notice of defendants' Motion to Compel, and the scheduled hearing on December 8, 2004.
Record Document 107, November 29, 2004.
In his motion, plaintiff further indicates that he has sent discovery to defendants to which there has been no response. The record does not reflect, however, that plaintiff has ever filed a Motion to Compel, the appropriate procedure under those circumstances.
Finally, plaintiff objects to the holding of a Spears hearing which the Magistrate Judge fixed for February 24, 2005, claiming that such a hearing "is a device concocted by defense counsels [sic] and a bias [sic] magistrate judge to usurp and undermine the power of the trier of fact (jury) and let the defendants go scot free for their violation plaintiff's Constitutional protections listed in the complaint." (Paragraph 12 of plaintiff's Motion) Quite to the contrary, a Spears hearing is also a routine procedure in cases such as this, and the undersigned instructs the Magistrate Judge to proceed accordingly. Mr. Duncan's failure to appear for the February 24, 2005 hearing will result in dismissal of this case, with prejudice, and the assessment of costs against him.
While pro se litigants, given that they are not licensed attorneys, are afforded a certain amount of indulgence and patience by the Court, they must still conduct themselves as responsible and respectful litigants. The filing of the Motion to Disqualify herein is not only reckless and vexatious, but entirely frivolous. Although Mr. Duncan is proceeding pro se, he has multiple cases filed in this Court and should, by now, be well-versed in the routine procedures necessary to advance a case. Mr. Duncan is therefore cautioned that future filings designed to proselytize, unnecessarily complicate the issues, or simply to impede the progress of this case will not be tolerated, and could result in the dismissal of this matter.