Opinion
CIVIL ACTION NO. 01-2926, SECTION "I" (2)
October 4, 2002
ORDER AND REASONS
Pro se plaintiff, Barbara Hoover, has filed two motions in the captioned case seeking recusal of both the presiding district judge and the magistrate judge assigned to her case. Both motions were noticed for hearing before the district judge. Record Doc. Nos. 44 and 64. By order dated September 18, 2002, the district judge denied plaintiff's motion as it pertained to him and referred the remainder to me for determination as to my recusal. Record Doc. No. 68. Having considered plaintiff's motions, the record and the applicable law, IT IS ORDERED that plaintiff's motions are hereby DENIED.
Motions to disqualify a judge from a pending matter are subject to the provisions of 28 U.S.C. § 144 and 455. A complaining party must present facts tending to show that the judge has "a personal bias or prejudice," 28 U.S.C. § 144, or that the judge's "impartiality might reasonably be questioned." 28 U.S.C. § 455. "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." Chitimacha Tribe of La. v. Has L. Laws Co., 690 F.2d 1157, 1162 (5th Cir. 1982), cert. denied, 464 U.S. 814 (1983).
Section 144 provides:
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 and prejudice either against him or in favor or 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. . . . It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.28 U.S.C. § 144. Neither the plaintiff's joint motion nor Patton's memorandum specifically cite Section 144. Nevertheless, broadly construing this pro se motion, I will consider this basis for recusal as well. Neither pleading is in the form of an affidavit, but I will not base my decision on the plaintiff's failure to abide by such formalities.
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.
Under Section 144, the movant must allege "facts that, if true, would convince a reasonable person that bias exists." Id. at 1071 (quotation and citations omitted). "[M]ere conclusions, opinions or rumors" are not sufficient. Id. at 1072. Under Section 455, the movant must convince the court that a reasonable person who knew of all the circumstances would harbor doubts about the judge's impartiality. Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d 1404, 1408 (5th Cir. 1994); Chitimacha Tribe, 690 F.2d at 1165.
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)); accord Barnes, 909 F.2d at 1072. Thus, information that I have gained through my participation in plaintiff's cases cannot be the basis for disqualification. Barnes, 909 F.2d at 1072; Giorgi, 840 F.2d at 1035. In addition, "adverse rulings against the [moving party] in the same or a prior judicial proceeding do not render the judge biased." Matter of Hipp. Inc., 5 F.3d at 116.
Plaintiff states no factual grounds and presents no evidence that might support my disqualification in this case under the standards set forth above. I have had no connection with the continuances of preliminary conferences and no ex parte contact with any parties or their counsel. I have no "shared interests" with any of the parties or any of the other persons named in plaintiff's motion papers. There is neither allegation nor evidence that anything requiring my disqualification arises from prejudice from an "extrajudicial source." Matter of Hipp. Inc., 5 F.3d at 116 n. 24.
Plaintiff's argument that my disqualification is required by some of my rulings in other cases and in this case, including particularly my denial of her motion to add defendants, Record Doc. No. 40, are baseless. Adverse rulings alone do not implicate recusal. Matter of Hipp, Inc., 5 F.3d at 116. Plaintiff's motions make no complaints about those instances in which I have granted her motions. Record doc. No. 15 and 33.
For the foregoing reasons, plaintiff's motion to recuse is DENIED. Plaintiff is specifically advised that she may seek reconsideration of this order by the presiding District Judge pursuant to 28 U.S.C. § 636(b)(1)(A) by filing a written motion within 10 days of receipt of this order. In addition, to whatever extent this order may be considered rendered pursuant to 28 U.S.C. § 636(b)(1)(B), a party's failure to file written objections to the proposed findings, conclusions and recommendations in a magistrate judge's report and recommendation within ten (10) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).