Opinion
3:00-CV-2463-R
September 7, 2001
FINDINGS CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b) and an order of this court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. Parties
Plaintiff, an inmate confined in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), brings this suit pursuant to 42 U.S.C. § 1983. He is proceeding pro se, and the Court has granted him permission to proceed in forma pauperis. Defendants are Dallas County Sheriff's Deputies Glenn Thompson, Charles Stark, Lennie Bolin, Jim Ivey and Walter Hoff.
II. Discussion
On August 10, 2001, Plaintiff filed a Motion to Recuse United States Magistrate Judge Paul Stickney under 28 U.S.C. § 144, 455 and ABA Code of Judicial Conduct Cannon 3. Plaintiff argues that Judge Stickney's previous rulings in this case show bias and prejudice against him. Plaintiff specifically refers to Judge Stickney's December 1, 2000, Order denying Plaintiff's "Motion to Show Cause and Temporary Restraining Order; and Preliminary injunctive Relief; and Declaratory Judgment."
(a) Title 28 U.S.C. § 144
To prevail on a motion under 28 U.S.C. § 144, the litigant must file a timely and sufficient affidavit establishing that the judge has a personal bias or prejudice. Once a motion is filed under § 144, the judge must rule on the legal sufficiency of the affidavit, but may not rule on the truth of the matter asserted. Henderson v. Dept. of Public Safety and Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990) (citation omitted). A legally sufficient affidavit must meet the following requirements: (1) the facts must be material and stated with particularity; (2) the facts must be such that if true they would convince a reasonable person that a bias exists; and (3) the facts must show the bias is personal, as opposed to judicial, in nature. Id. at 1295 (citing Parish v. Bd. of Comm'rs of Alabama State Bar, 524 F.2d 98, 100 (5th Cir. 1975)).
28 U.S.C. § 144 states:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
In this case, Plaintiff did not file an affidavit stating with particularity the facts supporting his motion. Plaintiff instead filed a declaration stating that all statements made in his motion were true and correct. Even accepting Plaintiff's non-particularized allegations in his motion, the motion fails to establish facts, that if true, would convince a reasonable person that a judicial bias exists. Plaintiff simply states that Magistrate Judge Stickney's previous rulings in this case show bias or prejudice. A judge, however, should not recuse himself based on unsupported or irrational speculation. McClelland v. Gronwaldt, 942 F. Supp. 297, 302 (E.D. Tex. 1996). The Fifth Circuit holds that a reasonable person would not harbor doubts about a judge's impartiality based on mere speculation. Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1167 (5th Cir. 1982). Plaintiff's allegations are unsupported and speculative. Plaintiff's Motion for Recusal under 28 U.S.C. § 144 should be denied.
Further, Plaintiff has not shown that the alleged bias is personal rather than judicial in nature. The Fifth Circuit holds that the alleged bias 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 or her participation in the case. United States v. MMR Corp., 954 F.2d 1040, 1045 (5th Cir. 1992) (citations omitted). Accordingly, adverse rulings in a case are not an adequate basis for recusal. Id.; see also Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) ("adverse rulings cannot in themselves form the appropriate grounds for disqualification."). Plaintiff's Motion under 28 U.S.C. § 144 should therefore be denied.
(b) Title 28 U.S.C. § 455
Similarly, to obtain recusal under 28 U.S.C. § 455, a movant must show that a reasonable person, knowing all the circumstances, would harbor doubts about the judge's impartiality. Chitimacha, 690 F.2d at 1165. The Fifth Circuit has held that substantively, 28 U.S.C. § 144 and 455 are "quite similar, if not identical." MMR Corp. 954 F.2d at 1045-46 (citations omitted). As discussed above, Plaintiff attempts to support his motion for recusal by stating that Judge Stickney's previous rulings in this case show bias and prejudice against him. These allegations are speculative and fail to show that a reasonable person would harbor doubts about Judge Stickney's impartiality in this case. Plaintiff's Motion to Recuse under 28 U.S.C. § 455 should therefore be denied.
Section 455(a) of 28 U.S.C. states: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
(c) Timeliness under 28 U.S.C. § 144 and 455
Further, sections 144 and 455 require that a motion for recusal be timely. Travelers Ins. Co. v. Liljeberg Enterprises, Inc., 38 F.3d 1404, 1410 (5th Cir. 1994). Judge Stickney's Order denying Plaintiff's "Motion to Show Cause and Temporary Restraining Order; and Preliminary injunctive Relief; and Declaratory Judgment" is dated December 1, 2000. Plaintiff did not file his Motion for Recusal until August 10, 2001, eight months after Judge Stickney's order. The Fifth Circuit has held that "one seeking disqualification must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification." Travelers Ins., 38 F.3d at 1410 (citations omitted). Plaintiff provided no explanation for waiting eight months to file his Motion. The Court finds Plaintiff's Motion under 28 U.S.C. § 144 and 455 untimely, and recommends his Motion be denied.
(d) ABA Code of Judicial Conduct
Finally, Plaintiff moves for recusal under Cannon 3 of the ABA Code of Judicial Conduct. Cannon 3 states that a judge shall perform the duties of judicial office impartially and diligently. As discussed above, Plaintiff has presented no evidence of bias, prejudice or partiality by Judge Stickney in this case. Plaintiff's Motion for Recusal under ABA Cannon 3 should therefore be denied.
RECOMMENDATION
The Court recommends that Plaintiffs Motion to Recuse be denied with prejudice as without merit under 28 U.S.C. § 144, 455 and the ABA Code of Judicial Conduct. Plaintiffs Motion should also be denied with prejudice as 28 U.S.C. § 144 and 455.