Whitworth v. Lowery et al

Filing 13

MEMORANDUM OPINION and ORDER that the Magistrate Judge's 6 Order is AFFIRMED and the plaintiff's Motion for Magistrate Judge Davis to recuse himself DENIED; as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/7/2012. (AHI)

FILED
2012 May-07 PM 02:22
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RONALD L. WHITWORTH, JR., )
)
Plaintiff,
)
)
v.
)
)
TERRY LOWERY, et al.,
)
)
Defendants.
)

Case No. 2:12-cv-00236-CLS-HGD

MEMORANDUM OPINION AND ORDER
The plaintiff is appealing the magistrate judge’s denial of the Motion for
Assignment of Alternate Magistrate Judge. (Docs. 5 & 6, respectively). As grounds
for his appeal the plaintiff states that he has filed a petition based upon 28 U.S.C. §
2255 in which he criticizes Judge Davis because of rulings he made in the plaintiff’s
criminal case. The plaintiff also describes an alleged incident which occurred during
his trial when Judge Davis spoke loudly to an attorney, and another when Judge
Davis refused to let an attorney representing the plaintiff withdraw from the case.
(Doc. 8).
A judge’s rulings alone almost never constitute a valid basis for a motion to
recuse. The Supreme Court in Liteky v. U.S., 510 U.S. 540, 555 (1994), said:
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. Thus, judicial remarks during the course
of a trial that are critical or disapproving of, or even hostile to, counsel,
the parties, or their cases, ordinarily do not support a bias or partiality
challenge.
The plaintiff has failed to show a deep-seated antagonism that would render
fair judgment on the part of Judge Davis impossible. The grounds for this motion are
inadequate and do not require disqualification. The court finds that the magistrate
judge’s order is not clearly erroneous or contrary to law.

See Rule 72(a),

Fed.R.Civ.P. Accordingly, IT IS HEREBY ORDERED that the magistrate judge’s
order is AFFIRMED, and that the plaintiff’s motion for Magistrate Judge Davis to
recuse himself is DENIED.
DONE this 7th day of May, 2012.

______________________________
United States District Judge

2