Opinion
Civil Action No. 05-147, Section "I" (2).
June 20, 2005
ORDER AND OPINION ON MOTION
Plaintiff, Oscar Dantzler, appearing pro se, filed a motion for my recusal in the instant matter, Record Doc. No. 12, and noticed it for hearing before the District Judge. It was referred to me for decision. Record Doc. No. 11. Defendants have not yet answered, but they have filed a motion to stay this action, which is pending before the district judge, until completion of related state court proceedings.
About five years ago, Dantzler filed another lawsuit in this court entitled Oscar Dantzler v. The City of Hammond et al., Civil Action No. 00-446"F" (2). That matter was referred to me for all proceedings and entry of judgment in accordance with 28 U.S.C. § 636(c) upon written consent of all parties. Record Doc. No. 15 in C.A. No. 00-446. I granted defendants' motion for summary judgment in that action and judgment was entered dismissing all of plaintiff's claims on November 13, 2001. Record Doc. Nos. 44, 45 in C.A. No. 00-446. Dantzler appealed and the United States Court of Appeals for the Fifth Circuit affirmed. Record Doc. No. 51.
As grounds for my recusal in the instant action, Dantzler alleges that (a) I "strongly overlooked the evidence and the laws that were violated against plaintiff" when I ruled against him in C.A. No. 00-446; (b) I allegedly have "personal knowledge that plaintiff has a pending suit [in another court] against the same defendants who [I] strongly supported against plaintiff" in C.A. No. 00-446; (c) Dantzler "believe[s] that this judge is bias, racial and prejudice;" (d) he has filed a judicial complaint against me with the Fifth Circuit under docket number 05-05-372-0036 and (e) he has filed a second judicial misconduct complaint against me with the Fifth Circuit under docket number 0505-372-0044. Record Doc. No. 12. Both judicial misconduct complaints against me have been dismissed.
Dantzler attached a copy of the docketing letter from the Fifth Circuit Clerk of Court to his motion. This action violates 28 U.S.C. § 360(a) and (a)(3), which provide: "[A]ll papers, documents and records of proceedings" concerning judicial misconduct complaints are confidential "and shall not be disclosed by any person in any proceeding" without the written authorization of the Chief Judge of the Fifth Circuit and the judge against whom the complaint is made.
Dantzler revealed the basis of this complaint in his motion for recusal, again in violation of 28 U.S.C. § 360(a)(3).
For the following reasons, plaintiff's motion for recusal is DENIED.
ANALYSIS
Motions to disqualify a judge from a pending matter are subject to the provisions of 28 U.S.C. §§ 144 and 455. Under Section 144, a complaining party must present facts tending to show that the judge has "a personal bias or prejudice either against him or in favor of any adverse party." 28 U.S.C. § 144. Alternatively, Section 455 provides that any "justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," 28 U.S.C. § 455(a), or when "he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Id. § 455(b)(1).The challenged judge is not required to transfer a disqualification motion to another judge for decision.Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1162 (5th Cir. 1982). "The challenged judge is most familiar with the alleged bias or conflict of interest. He is in the best position to protect the nonmoving parties from dilatory tactics." Id.
Dantzler's misconduct complaints against me have been dismissed. In any event, the pendency of a judicial misconduct complaint against me does not require me to transfer plaintiff's motion for recusal. In re Mann, 229 F.3d 657, 658 (7th Cir. 2000); Kampfer v. Gokey, 175 F.3d 1008, 1999 WL 97234, at *1 (2d Cir. Feb. 24, 1999) (unpubl. opin.); United States v. Bell, 98 F.3d 1347, 1996 WL 583658, at *1 (9th Cir. Oct. 10, 1996) (unpubl. opin.); see also In re Focus Media, 378 F.3d 916, 921, 930 (9th Cir. 2004) (affirming bankruptcy judge's decision not to recuse herself and affirming her use of a party's judicial misconduct complaint against her, which she had provided to the other parties because it contained information relevant to the bankruptcy proceedings, as evidence, "among other damaging statements," to find that complainant was not believable); In re Rood, No. MISC. 766, 2004 WL 1385986, at *1 (Fed. Cir. June 3, 2004) (denying writ of mandamus for trial judge's decision not to recuse himself, when trial judge had ruled that judicial misconduct complaint filed by parties' counsel arising out of earlier case "was dismissed, the Federal Circuit affirmed the earlier case on the merits, and there was no evidence indicating impartiality in this case").
Furthermore, the "issue of judicial disqualification is solely one of law," Trevino v. Johnson, 168 F.3d 173, 178 (5th Cir. 1999), and the motion is committed to my sound discretion.Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003), cert. denied, 541 U.S. 935 (2004); Trevino, 168 F.3d at 179. Therefore, I will decide initially whether Dantzler's motion to disqualify me has any merit on its face.
A motion brought under Section 144
relates only to charges of actual bias. When a party files a § 144 motion, the judge must pass on the sufficiency of the affidavit, but may not pass on the truth of the affidavit's allegations. A legally sufficient affidavit must: (1) state material facts with particularity; (2) state facts that, if true, would convince a reasonable person that a bias exists; and (3) state facts that show the bias is personal, as opposed to judicial, in nature.Patterson v. Mobil Oil, 335 F.3d 476, 483 (5th Cir. 2003) (citation omitted), cert. denied, 540 U.S. 1108 (2004). "[S]imple conclusions, opinions, or rumors are insufficient. . . . Moreover, because the statute is heavily weighed in favor of recusal, its requirements are to be strictly construed to prevent abuse." Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir. 2004) (quotations omitted); accord Payne v. Equal Employment Opportunity Comm'n, 242 F.3d 390, 2000 WL 1862659 (10th Cir. 2000) (unpubl. opin).
A motion to recuse under Section 455(a) does not require proof of actual bias.
When considering a claim under § 455(a), we must consider whether a reasonable and objective person, knowing all of the facts, would harbor doubts concerning the judge's impartiality. This is because the goal of this provision is to avoid even the appearance of partiality. Thus, recusal may be required even though the judge is not actually partial.Patterson, 335 F.3d at 484 (citing Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988)) (additional citations and quotations omitted) (emphasis in original).
"[Section] 455(a) requires judicial recusal if a reasonable person, knowing all the circumstances, would expect that the judge would have actual knowledge of his interest or bias in the case." Sao Paulo State of the Federative Republic of Brazil v. American Tobacco Co., 535 U.S. 229, 232-33 (2002) (quotation omitted) (emphasis in original). Therefore, "whenever a judge's partiality might reasonably be questioned, recusal is required under § 455(a), irrespective whether the circumstance is covered by § 455(b)." Andrade, 338 F.3d at 454 (citing Liljeberg, 486 U.S. 847, 860 n. 8). "If the question of whether § 455(a) requires disqualification is a close one, the balance tips in favor of recusal." Patterson, 335 F.3d at 484 (quotation omitted); see also Liljeberg, 486 U.S. at 864-65 ("people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges").
Several guidelines assist the court in analyzing motions under Section 455(a). First, "the standard for bias is not subjective, as it once was, but, rather, objective. . . . [I]t is with reference to the well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person[,] that the objective standard is currently established."Andrade, 338 F.3d at 454-55 (citations and quotation omitted).
Second, the court's review "should entail a careful consideration of context, that is, the entire course of judicial proceedings, rather than isolated incidents." Id. at 455 (citing Sao Paulo State, 535 U.S. at 232-33) (additional citations omitted).
"Finally, the origin of a judge's alleged bias is of critical importance. In 1994, the Supreme Court applied a common-law doctrine commonly called the `extrajudicial source rule' to the interpretation of § 455." Id. (citing Liteky v. United States, 510 U.S. 540, 555 (1994)). Under this rule,
judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. In and of themselves (i.e., apart from surrounding comments or accompanying opinion), they cannot possibly show reliance upon an extrajudicial source; and can only in the rarest circumstances evidence the degree of favoritism or antagonism required (as discussed below) when no extrajudicial source is involved. Almost invariably, they are proper grounds for appeal, not for recusal. Second, opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, 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.Liteky, 510 U.S. at 555 (citations and footnotes omitted) (emphasis added).
To warrant recusal, the alleged bias "must be personal and `must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'" Matter of Hipp, Inc., 5 F.3d 109, 116 n. 24 (5th Cir. 1993) (quoting United States v. Grinnell, 384 U.S. 563, 583 (1966)). Thus, information that I have gained through my participation in plaintiff's cases cannot be the basis for disqualification. In addition, "adverse rulings against the [moving party] in the same or a prior judicial proceeding do not render the judge biased."Id. at 116.
"Parties cannot be allowed to create the basis for recusal by their own deliberate actions. . . . Consistent with this reasoning, courts have typically rejected recusal motions based on, and effectively created by, a litigant's deliberate act of criticizing the judge or judicial system." United States v. Owens, 902 F.2d 1154, 1156 (4th Cir. 1990) (citations omitted).
Thus, a judge is not disqualified merely because a litigant files a complaint alleging judicial misconduct. If that were the rule, litigants could manipulate the system by filing false or frivolous complaints in hopes of being assigned a judge more to their liking. "`Judge shopping' is not a practice that should be encouraged." In re Mann, 229 F.3d 657, 658 (7th Cir. 2000).
Bearing in mind all of the relevant legal principles cited above, Dantzler's argument that my disqualification is required by my rulings in his prior case and/or this case is baseless. Adverse rulings alone do not implicate recusal. Liteky, 510 U.S. at 555; Matter of Hipp, Inc., 5 F.3d at 116. Furthermore, Dantzler has presented no evidence of actual bias that would require recusal under 28 U.S.C. § 144.
Turning to 28 U.S.C. § 455(a), I agree with the sound policy reasons that have led various courts to hold that a litigant's deliberate conduct in criticizing the judge should not be a reason for recusal because of the risk of "judge shopping." Plaintiff's motion for recusal does not cite any relevant, extrajudicial information that would cause a reasonable person, knowing all the circumstances, to question my impartiality. The only extrajudicial information referenced in support of the motion is plaintiff's own allegations contained in his judicial misconduct complaints against me. These complaints have been dismissed, and all of the allegations of this type contained in them are false.
Dantzler cannot be allowed to shop for a judge of his own choosing by filing meritless judicial misconduct complaints and fabricating false personal information as their basis. His motion presents no valid grounds for recusal, and it is DENIED.