Opinion
CIVIL ACTION NO. 04-0366 c/w 04-504 SECTION "J" (3)
April 6, 2004
ORDER AND REASONS
Before the Court are requests for disqualification/recusal filed by pro se plaintiff, Samuel Michael Schildkraut ("Schildkraut"). Plaintiffs submissions in that regard are entitled "Plaintiffs Response to Judge Knowles' Minute Entry of March 24th, 2004 Pertaining To Yet Another Refusal of Plaintiffs Motion for Counsel" and "Plaintiffs Response to Judge Knowles' Minute Entry of March 29, 2004 Pertaining to Preliminary Conference and Question of Proceeding To Trial Before Magistrate Judge Pursuant To 28 U.S.C. 636(c)," respectively. Both of the aforesaid responses question the impartiality of the undersigned Magistrate Judge. More particularly, plaintiff notes that "unfair rulings" which have issued in the consolidated proceedings and requests information as to whether the undersigned may perhaps own stock in the related defendant entities. Broadly construing the pro se plaintiffs pleadings, as this Court must, the aforesaid responses seek disqualification of the undersigned Magistrate Judge. For the following reasons, the plaintiff's request for disqualification and/or recusal are DENIED.
Record Document No. 11.
Record Document No. 10.
BACKGROUND
Plaintiff claims in this case arise out alleged Title VII retaliatory discharge and reprisal by his former employer, Bally's Casino, due to his alleged "whistle blowing activities" regarding the defendants1 allegedly unlawful gaming practices. Plaintiff claims that the reprisals took various forms, to wit: (1) a frivolous "write-up" alleging that he harassed two female casino dealers; (2) an assault and battery by his supervisor, Alfred Holy; and (3) his termination within two days of his alleged report of illegal dice activities. He further claims disparate treatment on account of his race (white), sex (male) and religion (Jewish). Plaintiff seeks over four million dollars in damages and requests trial by jury. The plaintiffs consolidated cases are virtually identical, the most recently filed case numbered 04-504 on the docket of this Court, having been removed from Civil District Court for the Parish of Orleans by the defendants named in the case.The undersigned Magistrate Judge granted the plaintiffs application for pauper status. However, this Court denied the plaintiffs motions to appoint counsel in both of the above captioned consolidated proceedings. Additionally, the undersigned denied the plaintiffs Motion for Reconsideration of the aforesaid rulings.
See Order dated February 11, 2004 [Rec. Doc. No. 3].
See Order and Reasons dated February 13, 2004 [Rec. Doc. No. 4/Case 04-366]; Minute Entry dated March 1, 2004 [Rec. Doc. No. 6/Case 04-366]; Minute Entry dated March 23, 2004 [Rec. Doc. No. 10/Case No. 04-504].
Plaintiff appealed this Court's orders to the district judge; the plaintiffs "motion to overturn denial of request for appointment of counsel" was denied. Thereafter, Judge Barbier issued the order of consolidation [Rec. Doc. No. 8] and this Court set a preliminary conference in the consolidated proceedings [Rec. Doc. No. 9].
See Order dated March 19, 2004 [Rec. Doc. No. 7/Case No. 04-366].
ANALYSIS Recusal Statutes
The parties in a federal proceeding clearly have no right to the judge of their choice. However, if a party believes that the judge assigned to hear his case cannot be impartial, the party may move to disqualify or recuse the judge pursuant to 28 U.S.C. § 144 or § 455. Judicial qualification is solely a question of law. The burden of proof on the litigant in this regard is substantial, because a judge is presumed to be impartial. If the motion is made pursuant to § 455, the judge whose impartiality is questioned rules on the motion. If the motion is pursuant to § 144, the same judge must determine whether the required affidavit complies with the law and, if so, he must turn the matter over to another judge. Simply stated, in the case of a § 144 motion, the judge whose impartiality is questioned may only rule on the sufficiency of the affidavit. However, § 144 is inapplicable in the case of a pro se litigant; thus plaintiffs requests for disqualification are discussed under the rubric of 28 U.S.C. § 455.
See McCuin v. Texas Power Light Co., 714 F.2d 1255, 1262 (5th Cir. 1993) (noting that neither judges nor jurors are fungible").
See In re City of Houston, 745 F.2d 925, 927 (5th Cir. 1984) (citing McCuin, 714 F.2d at 1260).
See NJIE v. Lubbock County Texas, 999 F. Supp. 858, 860 (N.D. Tex. 1998) (citing Bin-Wahad v. Coughlint 853 F. Supp. 680, 683 (S.D.N.Y. 1994)), aff'd, 200 F.3d 816 (5th Cir. 1999).
See Doddy v. Oxy USA, Inc., 101 F.3d 448, 458 n. 7 (5th Cir. 1996).
See United States v. Miranne, 688 F.2d 980, 984-85 (5th Cir. 1982), cert. denied, 459 U.S. 1109(1983).
See Mills v. City of New Orleans, 2002 WL 31478223 ** 1-2 (E. D. La. November 4, 2002) (citing 28 U.S.C. § 144 and Robinson v. Gregory, 929 F. Supp. 334, 337-38 (S.D. Ind. 1996)).
Section 455 of Title 28 states in pertinent part:
(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;
* * *
(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;
* * *
(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. . . .
Broadly construed, the plaintiffs motion addresses § 455(a), (b)(1), and (b)(4). At the outset the Court notes that it has no personal or fiduciary financial interests in any of the parties to the instant proceedings. Additionally, the undersigned magistrate judge's relations, as described in § (b)(4), have no such personal or financial interest. Because of the absence of any personal or financial interest in any of the parties or the outcome this case, the undersigned is of the opinion that his impartiality cannot reasonably be questioned. A judge should only be disqualified if his impartiality might reasonably be questioned or if he has or had a specific level of personal involvement in the matter.
See Florence v. Frontier Airlines. Inc., 2003 WL 21501974 * 1 (N.D. Tex. June 26, 2003) (citing I.Q. Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368, 377 (5th Cir. 2002), cert. denied, 123 S.Ct. 1632(2003)).
The only other focus of the plaintiffs complaint are rulings issued by the undersigned denying appointment of counsel, which are intra judicial rulings. Adverse judicial rulings alone do not support an allegation of bias under 28 U.S.C. § 455. In Liteky, the Supreme Court stated that "the recusal statute 'was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, . . . but to prevent his future action in the pending cause."
See Liteky v. United States, 510 U.S. 540, 556 n. 3 (1994).
See Matasserin v. Lynch, 174 F.3d 571 (5th Cir. 1999) (citing In re Billedeaux, 972 F.2d 104, 106 (5th Cir. 1992)); United States v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997), cert. denied, 522 U.S. 1033(1997).
Liteky, 510 U.S. at 549 (quoting Ex pane American Steel Barrel Co., 230 U.S. 35, 44 (1913)).
The plaintiff has the burden of demonstrating that this Court should be recused on the basis of some bias or prejudice stemming from an extrajudicial source, not an intra judicial ruling. Review of the plaintiffs written submissions indicate that this Court's findings and rulings in this case are the basis for his requests for disqualification. Although the aforesaid finding/rulings in the current proceedings may properly form the basis of an appeal, this Court is of the opinion that they are not grounds for disqualification/recusal under any of the provisions of 28 U.S.C. § 455.
See id. at 555-56 (noting that judicial rulings alone almost never constitute a valid basis for a bias or partiality motion and only in the rarest circumstances evidence a degree of favoritism or antagonism required when no extrajudicial source is involved).
Accordingly,
IT IS ORDERED that the plaintiffs Requests for Disqualification [Rec. Doc. Nos. 10 and 11] are DENIED.
OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served within ten days after being served with a copy of this order. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b) and 72(b) A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge; and (2) appellate review of the unobjected-to factual findings and legal conclusions accepted by the district court, except upon grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en band).