Shaw v. United States of America
Filing
12
ORDER denying 10 Petitioner's Motion to Recuse. Signed by Magistrate Judge Sheri Polster Chappell on 9/9/2011. (LMH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VANESSA SHAW,
Plaintiff,
-vs-
Case No. 2:11-cv-481-FtM-36SPC
UNITED STATES OF AMERICA,
Defendant.
_____________________________________/
ORDER
This matter comes before the Court on Petitioner’s Motion to Recuse (Doc. #10) filed on
September 7, 2011. Plaintiff pro se Vanessa Shaw is seeking disqualification of the Honorable Sheri
Polster Chappell on grounds that she has been denied due process of law.
Under 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.” Any
doubt “must be resolved in favor of recusal.” See Murray v. Scott, 253 F.3d 1308, 1310 (11th Cir.
2001). When considering recusal, the potential conflict must be considered as it applies to the entire
case. Id. at 1310-11. A judge contemplating recusal should not ask whether he or she believes he
or she is capable of impartially presiding over the case but whether “[the judge’s] impartiality might
reasonably be questioned.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988).
However, a judge has as strong a duty to sit when there is no legitimate reason to recuse as he does
to recuse when the law and facts require. United States vs. Malmsberry, 222 F. Supp. 2d 1345 (11th
Cir. 2002) (citing United States vs. Greenspan, 26 F.3d 1001 (10th Cir. 1994)).
The Court does not find after a thorough review of the record that the Court’s impartiality
might reasonably be questioned based upon the facts cited in the Plaintiff’s Motion. After reviewing
the explicitly enumerated conflicts of interest in which recusal is mandatory under section 455(b),
if the Court does not find that any apply, the judge is obligated to continue to preside over the case.
See Lawal v Winners International Rests Co. Ops., Inc., 2006 WL 898180 at * 4 (N.D. Ga. Apr. 6,
2006) (holding a trial judge has as much obligation not to recuse herself when there is no reason to
do so as she does to recuse herself when the converse is true).
Section 28 U.S.C. 455(b) spells out certain situations in which partiality is presumed and
recusal is required.1 After reviewing the explicitly enumerated conflicts of interest in which recusal
is mandatory under section 455(b), the Court does not find that any apply, and therefore, does not
find good cause for recusal.
1
Subsection 455 (b)(1) requires a judge to disqualify himself
“[w]here he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding.”; 455 (b)(2): “[w]here in private practice [the judge] served
as a lawyer in the matter in controversy, or a lawyer with whom he
previously practiced law served during such association as a lawyer
concerning the matter, or the judge or such lawyer has been a material
witness concerning it.”; 455 (b)(3): where the judge “served in
governmental employment and in such capacity participated as counsel,
adviser or material witness concerning the proceeding or expressed an
opinion concerning the merits of the particular case in controversy.”;
455(b)(4): where a judge “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.”; or 455(b)(5)(i): “[w]here he or his
spouse, or a person within the third degree of relationship to either of
them, or the spouse of such a person... [i]s party to the proceeding, or
an officer, director, or trustee of a party.”; 455(b)(5)(ii): where the
judge “or his spouse, or a person within the third degree of relationship
to either of them, or the spouse of such a person... is acting as a
lawyer in the proceeding.”
-2-
Accordingly, it is now
ORDERED:
Petitioner’s Motion to Recuse (Doc. #10) is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
Copies: All Parties of Record
-3-
9th
day of September, 2011.
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