Shinault v. Hada et al

Filing 8

ORDER denying 7 Response to Order of Dismissal by Judge Lewis T. Babcock on 11/13/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-02757-LTB
TELELA SHINAULT,
Plaintiff,
v.
JUDGE KERRY HADA, and
JUDGE MARY CELESTE,
Defendants.

ORDER DENYING MOTIONS TO RECUSE AND RECONSIDER

Plaintiff, Telela Shinault, resides in Denver. On November 7, 2014, she filed a
document titled “Plaintiff Response to Order of Dismissal” (ECF No. 7), which generally
is unintelligible but appears to seek my recusal and request reconsideration of the
dismissal of this action. Ms. Shinault disagrees with the order of October 10, 2014
(ECF No. 4), dismissing this action pursuant to 28 U.S.C. § 1915(e)(2)(B) as legally
frivolous.
The Court must construe the requests liberally because Ms. Shinault is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons discussed below, the
requests for my recusal and to reconsider the dismissal of this action will be treated as
motions, and will be denied.
The Court first will address Ms. Shinault’s motion for my recusal based on bias.
Because of Ms. Shinault’s pro se status, I will construe the request for recusal as a

motion under 28 U.S.C. § 455, as well as 28 U.S.C. § 144. Plaintiff fails to demonstrate
that disqualification is appropriate pursuant to either §§ 144 or 455.
Title 28 U.S.C. § 144 provides a procedure whereby a party to a proceeding may
request the judge before whom the matter is pending to recuse himself or herself based
on personal bias or prejudice either against the moving party or in favor of any adverse
party. Section 144 requires the moving party to submit a timely and sufficient affidavit of
personal bias and prejudice. See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir.
1997). Rumor, speculation, opinions and the like do not suffice. Id. “The affidavit must
state with required particularity the identifying facts of time, place, persons, occasion,
and circumstances.” Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). Although
the Court must accept the facts alleged in a proper supporting affidavit under § 144 as
true, the affidavit is construed strictly against the moving party. See Glass v. Pfeffer,
849 F.2d 1261, 1267 (10th Cir. 1988). The moving party has a substantial burden “to
demonstrate that the judge is not impartial.” United States v. Burger, 964 F.2d 1065,
1070 (10th Cir. 1992).
Here, Ms. Shinault has failed to satisfy the procedural requirements of 28 U.S.C.
§ 144 in at least two crucial ways. First, she has failed to file a supporting affidavit that
is either sworn to or affirmed. United States v. Peltier, 553 F. Supp. 886, 890 n.10 (D.
N.D. 1982); In re Beecher, 50 F. Supp. 530, 531 (E.D. Wash. 1943). In addition, there
is no “certificate of counsel of record stating that [the supporting affidavit] is made in
good faith.” 28 U.S.C. § 144. As the court noted in Williams v. New York City Housing
Authority, 287 F. Supp. 2d 247, 249 (S.D.N.Y. 2003):
A pro se party cannot supply a certificate of counsel. For
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this reason, at least one court has concluded that a pro se
plaintiff cannot bring an affidavit under 28 U.S.C. § 144. See
Robinson v. Gregory, 929 F. Supp. 334, 337-38 (S.D. Ind.
1996). The court in Robinson noted that not only are the
requirements of Section 144 strictly enforced, but the
requirement for a certificate of counsel of record prevents
abuse of the section’s procedures. . . . In addition, the court
stated that parties proceeding pro se have other
mechanisms available to them to guard against biased or
prejudiced judges. Id. (noting that 28 U.S.C. § 455 provides
an equally applicable means of protest for pro se litigants).
[Plaintiff’s] affidavit, which is submitted pro se and without a
certificate of counsel of record, fails on this threshold matter.
Accord Glass, 849 F. 2d at 1267 (holding that Ҥ 144 requires an affidavit of bias and
prejudice, which must be timely, sufficient, made by a party, and accompanied by a
certificate of good faith of counsel”).
Pursuant to 28 U.S.C. § 455(a), “[a]ny justice, judge, or magistrate [judge] of the
United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” The general purpose of § 455(a) is “to promote public
confidence in the integrity of the judicial process” and to avoid even the “appearance of
partiality.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 860 (1988).
“[W]hat matters is not the reality of bias or prejudice but its appearance.” Liteky v.
United States, 510 U.S. 540, 548 (1994). Under § 455(a), “a judge has a continuing
duty to recuse before, during, or, in some circumstances, after a proceeding, if the judge
concludes that sufficient factual grounds exist to cause an objective observer
reasonably to question the judge's impartiality.” United States v. Cooley, 1 F.3d 985,
992 (10th Cir. 1993). “The decision to recuse is committed to the sound discretion of
the district court.” Burger, 964 F.2d at 1070 (citation omitted).
“The provisions of 28 U.S.C. § 455(a) do not command automatic disqualification
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of a judge, to the contrary, it is the duty of the judge who is allegedly biased to pass on
the sufficiency of the allegations.” See David v. City & County of Denver, 837
F. Supp. 1094, 1095 (D. Colo. 1993). A judge has an obligation not to disqualify himself
unnecessarily. See Cooley, 1 F.3d at 994; David, 837 F. Supp. at 1095. A judge is
obligated not to recuse when there is no occasion for him to do, just as he is obligated
to recuse when there is occasion to do so. See Nichols v. Alley, 71 F.3d 347, 351 (10th
Cir. 1995); Hinman v. Rogers, 831 F.2d at 939. If, however, disqualification under §
455(a) is a close question, the balance tips in favor of recusal. See Nichols, 71 F.3d at
352.
Under 28 U.S.C. § 455(a), the judge's actual state of mind, purity of heart,
incorruptibility, or lack of partiality are not the issue; rather, the issue is whether a
reasonable person, knowing all of the relevant facts, would harbor doubts about the
judge's impartiality. Nichols, 71 F.3d at 351; Cooley, 1 F.3d at 993. The standard is
purely objective and the inquiry is limited to outward manifestations and reasonable
inferences drawn therefrom. See Nichols, 71 F.3d at 350-51; Cooley, 1 F.3d at 993.
In applying the objective test, “the initial inquiry is whether a reasonable factual
basis exists for calling the judge's impartiality into question.” Cooley, 1 F.3d at 993
(emphasis in original). Application of 28 U.S.C. § 455(a) necessarily includes emphasis
on whether a judge's impartiality might “reasonably” be questioned. Id. Section 455(a)
is not to be construed so broadly that recusal would be mandated “upon the merest
unsubstantiated suggestion of personal bias or prejudice.” Franks v. Nimmo, 796 F.2d
1230, 1235 (10th Cir. 1986) (citing United States v. Hines, 696 F.2d 722, 729 (10th Cir.
1982)). Section 455(a) should not be read to warrant the transformation of a litigant's
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fear that a judge may decide a question against him into a “reasonable fear” that the
judge will not be impartial. See Cooley, 1 F.3d at 993. The statute is not intended to
give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their
choice. See Nichols, 71 F.3d at 351; Cooley, 1 F.3d at 993.
Ms. Shinault’s request for my recusal is insufficient because it fails to show
personal bias or prejudice. The request for recusal fails to make any argument that
would demonstrate an appearance of partiality. Ms. Shinault’s disagreement with my
ruling in the instant action is not sufficient to demonstrate that disqualification is
appropriate pursuant to 28 U.S.C. § 455(a) because “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.” Liteky v. United States, 510 U.S.
540, 555 (1994). Therefore, the November 7 request for my recusal will be denied.
In the November 7 response, Ms. Shinault also moves the Court for relief from
the October 10 dismissal order. A litigant subject to an adverse judgment who seeks
reconsideration by the district court may “file either a motion to alter or amend the
judgment pursuant to Fed. R. Civ. P. 59(e) or a motion seeking relief from the judgment
pursuant to Fed. R. Civ. P. 60(b).” Van Skiver v. United States, 952 F.2d 1241, 1243
(10th Cir. 1991). A motion to alter or amend the judgment must be filed within twentyeight days after the judgment is entered. See Fed. R. Civ. P. 59(e). A motion to
reconsider filed more than twenty-eight days after the final judgment in an action should
be considered pursuant to Rule 60(b). See Van Skiver, 952 F.2d at 1243 (stating that a
motion to reconsider should be construed as filed pursuant to Rule 59(e) when it is filed
within the limit set forth under Rule 59(e)). Ms. Shinault’s request for reconsideration
was filed twenty-eight days after the Court’s Order of Dismissal and Judgment were
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entered on October 10. Therefore, the motion will be construed as a motion to
reconsider filed pursuant to Fed. R. Civ. P. 59(e).
As previously stated, on October 10, the Court dismissed the instant action as
legally frivolous. The October 10 dismissal order discusses in detail the reasons for the
dismissal. See ECF No. 4.
A Rule 59(e) motion may be granted “to correct manifest errors of law or to
present newly discovered evidence.” Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th
Cir. 1997) (internal quotation marks omitted). Relief under Rule 59(e) also is
appropriate when “the court has misapprehended the facts, a party’s position, or the
controlling law.” Servants of the Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.
2000). However, a Rule 59(e) motion is not a new opportunity to revisit issues already
addressed or to advance arguments that could have been raised previously. See id.
After review of the Fed. R. Civ. P. 59(e) motion and the entire file, the Court finds
that Ms. Shinault fails to demonstrate some reason why the Court should reconsider
and vacate the order to dismiss this action. Therefore, the motion will be denied.
Accordingly, it is
ORDERED that the document titled “Plaintiff Response to Order of Dismissal”
(ECF No. 7) that Plaintiff, Telela Shinault, filed on November 7, 2014, and which the
Court has treated as motions to recuse and to alter or amend the judgment pursuant to
Fed. R. Civ. P. 59(e), is denied.

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DATED at Denver, Colorado, this 13th day of

November , 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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