Suarez v. The School Board of Hillsborough County, Florida and its employees et al

Filing 132

ORDER denying 112 motion for recusal and denying 120 Motion to Reassign Case. The Plaintiff has failed to respond to the Defendants' motion for summary judgment. The Court will allow him twenty days from this date to respond or the Court will resolve the motion without benefit of his response. Signed by Judge Elizabeth A. Kovachevich on 1/15/2015. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

ENRIQUE R. SUAREZ,
Plaintiff,
vs.

CASE NO. 8:13-cv-1238-EAK-MAP

THE SCHOOL BOARD OF HILLSBOROUGH
COUNTY, FLORIDA, et al.,
Defendants.
____________________________________/

ORDER DENYING PLAINTIFF’S MOTIONS
This cause comes before the Court on Plaintiff’s Motion to Recuse (Doc. 112);
response thereto (Doc. 118); Plaintiff’s Motion to Reassign Case (Doc. 120); and
response thereto (Doc.123). For the reasons that follow, the motions are DENIED.

BACKGROUND
This case has been pending for about eighteen months and the Plaintiff has been
allowed to file three amended complaints filed. Numerous motions have been filed and
considered and this case was on a schedule for trial but the trial was continued to allow
sufficient time to resolve the pre-trial issues and motions. The Court has found that a
portion of the Plaintiff’s causes of action met the standards to survive the various motions
to dismiss. There is an unanswered motion for summary judgment pending and a trial to
be conducted if the cause of action survives that motion for summary judgment. The

Plaintiff’s two motions seek the same result, for the undersigned to recuse herself and for
the cause of action to be assigned to another judge.
LEGAL STANDARD
A judge “shall disqualify [herself] in any proceeding in which [her] impartiality
might reasonably be questioned.” 28 U.S.C.A. § 455(a). The purpose of Section 455(a)
is “to promote confidence in the judiciary by avoiding even the appearance of impropriety
whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865
(1988); see U.S. v. Cerceda, 188 F.3d 1291, 1293 (11th Cir. 1999) (requiring recusal
when the objective circumstances create an appearing of partiality). Recusal is
appropriate when “an objective, disinterested, lay observer fully informed of the facts
underlying the grounds on which recusal was sought would entertain a significant doubt
about the judge’s impartiality.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th
Cir. 1988). Actual bias is not necessary; any doubts must resolve in favor of the moving
party. Liteky v. U.S., 510 U.S. 540, 548 (1994); U.S. v. Kelly, 888 F.2d 732, 745 (11th
Cir. 1989); U.S. v. Alabama, 828 F.2d 1532, 1540 (11th Cir. 1987). However, “judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky,
510 U.S. at 555.
DISCUSSION
Plaintiff sets out these bases for recusal: (1) he fears he will “not receive a fair
trial...on account of the prejudice of the judge against the Plaintiff; (2) the escorting of the
Plaintiff when he is in the courthouse; and (3) the “unfair” dismissal of three of his
discrimination counts by the undersigned.

In the motion to reassign this case, the Plaintiff relies on a procedural rule of the
state court, Rule 2.330 (j), Florida Rule of Judicial Administration. As pointed out by the
Defendants, the Florida state court rule is not applicable to this Federal court proceeding.
Therefore, the motion to reassign (Doc. 123) is denied.
As to the motion to recuse, the Plaintiff’s allegations as to previous judicial
decisions requiring recusal are not persuasive. As the Defendants state:
Section 144 requires a judge to recuse herself when a party “files a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any adverse party.” 28 U.S.C.
§ 144. The moving party’s affidavit must allege facts that show under a reasonable
person standard the judge has a personal bias against him, not one that is judicial in
nature. Jones v. Commonwealth Land Title Ins. Co., 459 F. App’x 808, 810-11
(11th Cir. 2012) (citations omitted). The Plaintiff has failed to show recusal is
warranted under § 144 because he has not filed a timely affidavit to support his
accusations, nor has he made an objective showing that Judge Kovachevich has a
personal bias against him.
As to the escorting of the Plaintiff in the courthouse, the Plaintiff has failed to show that
the alleged bias was formed from extrajudicial sources rather than reasons related to the
litigation. See United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999). All the
Plaintiff has is speculation and presumption as to why he is escorted in the courthouse
and what might be the reason for the escort.
Based on the foregoing, and considering the pleadings on this matter, the Court
cannot find that an objective, disinterested lay observer fully informed of the facts would
have significant doubt about this Court’s impartiality. Accordingly, it is

ORDERED that the motion to recuse and the motion to reassign case are
DENIED. The Plaintiff has failed to respond to the Defendants’ motion for summary
judgment. The Court will allow him twenty days from this date to respond or the Court
will resolve the motion without benefit of his response.
DONE and ORDERED in Chambers, in Tampa, Florida, this 15th day of January,
2015.

Copies to: All parties and counsel of record