Opinion
Civil Action No. 03-3369, Section: I/5.
July 7, 2004
ORDER AND REASONS
Pro se plaintiff, Barbara Ann Jackson ("Jackson"), has filed a motion to recuse the undersigned pursuant to 28 U.S.C. § 144 and 455. Plaintiff seeks recusal of the undersigned pursuant to 28 U.S.C. § 144 and 455. "Both statutes are based upon the notion that a fair trial before an unbiased judge is a basic requirement of due process." 28 U.S.C. § 144 provides that:
28 U.S.C. § 144 is employed "to disqualify a judge prior to trial on motion of a party. [28 U.S.C.] § 455 is the statutory standard for disqualification of a judge. It is self-enforcing on the part of the judge. It may also be asserted by a party by motion in the trial court, . . . through assignment of error on appeal, . . . by interlocutory appeal, . . . or by mandamus."Parrish v. Board of Commissioners of the Alabama State Bar, 524 F.2d 98, 102 n. 8 (5th Cir. 1975) ( en banc) ( citations omitted), cert denied, sub nom, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976) . . Both statutes are similar, if not identical. Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d 1157, 1165 (5th Cir. 1982), cert denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983).
United States v. Smith, 1995 WL 555578 at *1 (E.D. La. 1995), ( citing United States v. Will, 490 U.S. 200, 206, 101 S.Ct. 471, 481, 66 L.Ed.2d 392 (1980); Chitimacha Tribe, 690 F.2d at 1165).
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 either 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.28 U.S.C. § 455 (a) and (b)(1) provides in pertinent part that:
(a) Any justice, judge, or magistrate 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.
A recusal motion under both statutes is committed to the sound discretion of the district judge. Disqualification motions must rest on facts sufficient to meet the standards of §§ 144 and 455, "so as to avoid giving parties a random veto over the assignment of judges."
Chitimacha Tribe of La. v. Harry L. Laws Co., 690 F.2d at 1166.
United States v. Giorgio, 840 F.2d 1022, 1034 (1st Cir. 1988); see also Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1409 n. 8 (5th Cir. 1994).
When a recusal motion is filed pursuant to § 144, the "judge must pass on the legal sufficiency of the affidavit, but not on the truth of the matters alleged." A legally sufficient affidavit must satisfy 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 that the bias is personal, as opposed to judicial, in nature. "An analysis of the sufficiency of the affidavit must begin from the proposition that the trial judge is presumed to be impartial and to have sufficient integrity to conduct an error free trial.
Id. at 1165; see also Davis v. Board of School Commissioners of Mobile County, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).
Parrish, 524 F.2d at 100; Henderson v. Department of Public Safety and Corrections, 901 F.2d 1288, 1296 (5th Cir. 1990).
Danielson v. Winnfield Funeral Home of Jefferson, 634 F. Supp. 1110, 1114 (E.D. La. 1986) (other citations omitted).
Affidavits filed pursuant to § 144 are strictly scrutinized for form, timeliness and sufficiency. "The mere filing of an affidavit under § 144 does not call for automatic disqualification." If the affidavit is legally insufficient pursuant to § 144, the matter need not be referred to another judge.
The literal language of the statute requires an affidavit in support of a motion to recuse pursuant to 28 U.S.C. § 144 to be filed "not less than ten days before the beginning of the term at which the proceeding is to be heard." Because the terms of court were abolished long ago, courts "have simply required a party to exercise reasonable diligence in filing an affidavit after discovering facts that show bias." Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 F.2d 654, 658 (5th Cir. 1985) ( citing Smith v. Danyo, 585 F.2d 83 (3d Cir. 1978)). It is unnecessary to assess the timeliness of plaintiff's affidavit since the motion to recuse is disposed of on other grounds.
United States v. Womack, 454 F.2d 1337, 1341 (5th Cir. 1972), cert. denied, 414 U.S. 1025, 94 S.Ct. 450, 38 LED.2d 316 (1973).
Smith, 1995 WL 555578 at *1, citing Danielson, 634 F. Supp. at 1113.
Henderson, 901 F.2d at 1296.
In her affidavit, the plaintiff makes the following allegations supporting her motion for recusal:
[P]laintiff Barbara Ann Jackson, requests that I verify the following statements whereby she states that she believes the Honorable Lance Africk is biased and prejudiced against her personally. In an extrajudicial manner, plaintiff believes that Judge Africk's biases are proximately connected to the Judge's favoritism toward persons within the deputy sheriff population. In addition, as it pertains to just adjudication of this case, the plaintiff believes that because of Judge Africk's unreasonable and blatantly perilous stonewalling on this issuance of the urgent and meritorious Order to disqualify Herschel Adcock and Sherrill Davison from functioning as legal advocates in this case, reasonable thinking people with awareness of the Models [sic] Code of Judicial Conduct and Canons of Professional Ethics-as well as reasonable people without knowledge of the Codes and Canons harbor genuine doubt as to impartiality of Judge Africk in allowing Adcock and Ms. Davidson to unlawfully continue functioning legal representative for the co-defendants in this case.
As stated, in order to be sufficient, the affidavit must first allege facts which are material and stated with particularity. "[C]onclusions, rumors, beliefs, and opinions are not sufficient to form a basis for disqualification." Plaintiff's reference to "stonewalling" amounts to an allegation that the Court has intentionally refused to rule on her motion to disqualify so as to allow defendant, Adcock, and his counsel, Davidson, to continue as counsel of record in this action. The other reference in the affidavit, i.e., that the Court exhibits favoritism to deputy sheriffs, is likewise a mere conclusion unsupported by any specific facts.
Henderson, 901 F.2d at 1296.
General Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d 1038, 1043 (5th Cir. 1990) ( quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987) (other citation omitted)).
In her memorandum in support of her motion to disqualify, plaintiff makes certain factual allegations which are not contained in her affidavit. For example, she suggests that the fact that the Court denied a pro se motion she filed before her counsel withdrew, but allowed Adcock, who is a defendant who is proceeding pro se, to file a memorandum in opposition to the motion to disqualify him, indicates bias against her. She also alleges that the Court's dismissal of defendant, Joshua Rendeno, a deputy sheriff, pursuant to plaintiff's own motion, indicates bias in favor of deputy sheriffs. She further contends that the Court's refusal to grant the motion for recusal in Capizzo v. State of Louisiana, 1999 WL 539439 (E.D. La. 1999) andBernofsky v. Tulane Unviversity Medical School, 962 F. Supp. 895 (E.D. La. 1997) indicates that the Court is not ethical.
None of these specific factual allegations are contained in plaintiff's affidavit and, as such, they cannot support her motion for recusal. However, even if such allegations were contained in her affidavit, her § 144 recusal motion would have no merit. With respect to her contention that the denial of her pro se motion while she was represented by counsel indicates bias, the Court would note that after her counsel withdrew, Jackson has filed several motions, none of which have been denied because she is proceeding pro se. Such denial could not convince a reasonable person that bias exists. Similarly, the fact that the Court granted plaintiff's own motion (albeit filed by her former counsel when she was represented by him) to dismiss Rendeno would not convince any reasonable person that the Court was biased against plaintiff. Finally, plaintiff offers no coherent explanation why the Court's actions in Capizzo orBernofsky, neither of which have ever found to be improper, would indicate bias either against her or in favor of any defendant. The Court finds that the Court's actions in Capizzo and in Bernofsky would not convince any reasonable person that the Court is biased in this case.
Plaintiff also complains that the fact that the Court has allowed this case to remain in federal court after it was removed indicates bias. In the petition she filed in state court, plaintiff alleged that defendant, Adcock, violated the federal Fair Debt Collection Practices Act, 15 U.S.C. § 1601 et seq (Rec. Doc. No. 1, amended petition filed Sept. 26, 2003, paras. 73 et seq) and the federal Truth in Lending Act (amended petition, paras. 118-119). Removal jurisdiction was based upon a federal question, 28 U.S.C. § 1331. To date, plaintiff has never sought to dismiss her federal claims and she has never filed a motion to remand
The second requirement of a legally sufficient affidavit is that the facts contained in the affidavit "must be such that if true they would convince a reasonable man that a bias exists." Applying this standard, the allegations in the affidavit are insufficient. No reasonable person could find that the Court harbors a bias against the plaintiff, or in favor of the defendant, Adcock, or counsel, Davidson, because the Court has not yet ruled on plaintiff's motion to disqualify which was set to be submitted on June 23, 2004, less than two weeks ago.
Henderson, 901 F.2d at 1296.
The third requirement of a § 144 affidavit, as stated, is that the facts in the affidavit must show that the bias is personal, rather than judicial, in nature, and the bias must be extrajudicial in origin.
By this it is meant that the alleged attitude and preconception on the part of the judge must arise from a source beyond the four corners of the courtroom, and not from his participation in the case. The only exception to this rule recognized in this Circuit is `where such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party.' The judge is permitted to fully express himself on legal matters, and adverse rulings against the moving party cannot serve as a basis for disqualification.
Henderson, 901 F.2d at 1296.
Danielson, 634 F. Supp. at 1115 (other citations omitted).
Danielson, 634 F. Supp. at 1115 ( quoting Davis v. Board of School Commissioners, 517 F.2d 1044, 1051 (5th Cir.), cert. denied 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1975).
Danielson, 634 F. Supp. at 1115.
"Thus, a motion for disqualification may not be predicated on the judge's rulings in the instant case or in related cases, nor on a demonstrated tendency to rule any particular way, nor on a particular judicial leaning or attitude derived from his experience on the bench." Plaintiff's affidavit delineates no particular facts which indicate extrajudicial prejudice of any kind. Her affidavit suggests only that she is disgruntled that the Court has not yet ruled on her motion to disqualify defense counsel and that the Court granted her motion to dismiss Rendeno, a deputy sheriff, facts which certainly do not indicate extrajudicial bias.
Phillips, 637 F.2d at 1020.
For these reasons, the Court, therefore, finds that plaintiff's affidavit in support of her recusal motion pursuant to 28 U.S.C. § 144 is legally insufficient and, therefore, her motion to recuse pursuant to that statute must be denied.
With respect to plaintiff's attempt to recuse the undersigned pursuant to 28 U.S.C. § 455(a), the movant must convince the Court that a reasonable person who knew of all the circumstances would "harbor doubts about the judge's impartiality." For reasons previously stated, this Court concludes that a reasonable person would not doubt the Court's impartiality if the recusal motion were denied and the matter would remain before the Court.
Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d at 1408 ( quoting Chitimacha Tribe, 690 F.2d at 1165).
Plaintiff has also failed to explain how her allegations support disqualification pursuant to § 455(b)(1). She provides no evidence that the Court has actual knowledge of disputed evidentiary facts or, as previously noted, that the Court holds a personal bias or prejudice concerning a party.
Accordingly,
IT IS ORDERED that the motion to recuse is DENIED.