Schneider v. County of Will et al

Filing 362

MEMORANDUM Opinion and Order: For the foregoing reasons, the Court finds that Mr. Schneider has failed to demonstrate actual bias under 28 U.S.C. § 144 sufficient to support the undersigned judge's recusal. For the same reasons, the Court also finds that no reasonable person would perceive an appearance of bias in these circumstances such that recusal is also not called for under 28 U.S.C. § 455. Therefore, Mr. Schneider's motion, R. 359 , is denied. Signed by the Honorable Thomas M. Durkin on 8/23/2016:Mailed notice(srn, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
B. MICHAEL SCHNEIDER,
No. 08 C 3054

Plaintiff,

Judge Thomas M. Durkin

v.
COUNTY OF WILL and MICHAEL O’LEARY,
Defendants.

MEMORANDUM OPINION AND ORDER
B. Michael Schneider, pro se, alleges that Defendants held him in jail for too
long after an Illinois circuit judge ordered him jailed for criminal contempt. Mr.
Schneider has moved to recuse the undersigned judge from the case pursuant to 28
U.S.C. § 144 and 28 U.S.C. §§ 455(a) and (b). For the following reasons, that motion
is denied.
“Unlike a motion to recuse under 28 U.S.C. § 455, which simply requires the
reasonable appearance of bias, a motion to disqualify under § 144 requires a
showing of actual bias.” Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir.
2004) (emphasis in original). Section 144 provides:
Whenever a party to any proceeding in a district
court makes and 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
an adverse party, such judge shall proceed no further
therein, but another judge shall be assigned to hear such
proceeding.

The affidavit shall state the facts and the reasons
for the belief that bias or prejudice exists, and shall be
filed not less than ten days before the beginning of the
term at which the proceeding is to be heard, or good cause
shall be shown for failure to file it within such time. A
party may file only one such affidavit in any case. It shall
be accompanied by a certificate of counsel of record
stating that it is made in good faith.
“A judge must recuse himself under § 144 if a party files a timely and sufficient
affidavit suggesting personal prejudice against the party.” West v. Litscher, 209 Fed.
App’x 557, 559 (7th Cir. 2006). “[O]nly personal animus or malice on the part of the
judge can establish actual bias.” Hoffman, 368 F.3d at 718. “[J]udicial rulings alone
will almost never constitute a valid basis for disqualification under § 144.” Id. “A
court may only credit facts that are sufficiently definite and particular to convince a
reasonable person that bias exists; simple conclusions, opinions, or rumors” or
“mere conjecture and supposition . . . are insufficient.” Id. “And while a court must
assume the truth of the [sufficiently described] factual assertions, it is not bound to
accept the movant’s conclusion as to the facts’ significance.” Id. “A trial judge has as
much obligation not to recuse himself when there is no occasion for him to do so
[under § 144] as there is for him to do so when the converse prevails.” Id. (reference
to § 144 in the original).
Mr. Schneider’s motion is based largely on the Court’s rejection of his
argument that the Will County State’s Attorney had improperly appointed Martin
McManaman and Patrick Moran of the firm Lowis & Gellen to represent
Defendants in this case. Mr. Schneider first raised this issue in 2008 when Judge
Andersen was presiding, and Judge Andersen denied Mr. Schneider’s motion to
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disqualify defense counsel. See R. 29. Six years later, Mr. Schneider sought
reconsideration of that ruling, see R. 255, which the Court denied. See R. 261. Mr.
Schneider then filed an interlocutory appeal with the Seventh Circuit regarding this
issue. See R. 263. After the Seventh Circuit denied his appeal as premature, see R.
282, Mr. Schneider again made a motion for reconsideration on this issue, see R.
293, which the Court denied. See R. 301. Mr. Schneider yet again sought
reconsideration, see R. 302, which the Court again denied. See R. 304. Mr. Schneider
then sought permission to file a second interlocutory appeal on this issue, see R.
306, which the Court denied. See R. 311. Contrary to Mr. Schneider’s allegation that
the Court made these rulings simply because Judge Andersen had initially rejected
Mr. Schneider’s arguments, the record reflects that the Court considered Mr.
Schneider’s arguments apart from Judge Andersen’s prior ruling. In fact, Mr.
Schneider acknowledges that in addressing his motion on this issue the Court
required defense counsel to produce the documents supporting their appointment as
counsel in this case. See R. 299. These documents satisfied the Court that defense
counsel were duly appointed. See R. 301.
In the course of addressing this issue with Mr. Schneider, the Court told him
that this issue was irrelevant to the underlying facts of his case, and that he was
pursuing this issue to the detriment of his ability to prosecute the merits of the
case. He was choosing to raise and re-raise this issue and was failing to prepare for
trial. For that reason, and because the Court had rejected his argument regarding
defense counsel’s appearance, the Court warned Schneider that he risked sanctions

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if he continued to press this issue. See R. 301; R. 304.1 The Court never imposed
such sanctions on Mr. Schneider.
Mr. Schneider’s motion for recusal based on my rejection of his argument that
defense counsel was improperly appointed fails for two reasons. First, it is untimely.
Mr. Schneider states that he “lost all hope of receiving a fair trial before Judge
Durkin” with regard to this particular issue on “March 19, 2016.” R. 359 at 15. But
Mr. Schneider did not file his recusal motion until August 18, 2016, four days before
we were to begin his jury trial. See R. 359. A five month delay does not demonstrate
that Mr. Schneider filed his motion “at the earliest moment after the [he] acquire[d]
knowledge

of

the

facts

that

[allegedly]

demonstrate

the

basis

for

the

disqualification.” Franzen v. Ellis Corp., 2004 WL 406822, at *1 (N.D. Ill. Feb. 12,
2004) (citing United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1983)). Thus,
recusal is not warranted because Mr. Schneider’s motion is untimely.
Second and more substantively, recusal is not proper on the basis of Mr.
Schneider’s disagreement with the Court’s legal decisions. Mr. Schneider must
demonstrate actual bias, meaning that the Court’s “alleged bias is personal rather
than judicial.” Franzen, 2004 WL 406822, at *1. The Court2 considered and rejected
Mr. Schneider’s argument that defense counsel were improperly appointed. The
Court provided reasons for these decisions, and at a certain point it became

The Court did not, however, threaten Mr. Schneider with “dismissal for want of
prosecution” on April 20, 2016, as he alleges. R. 359 at 23.

1

Mr. Schneider appears to not have sought reconsideration of Judge Andersen’s
ruling on this issue from any of the three judges that presided over this case
between Judge Andersen’s retirement and the undersigned judge’s assignment.
2

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counterproductive for the Court to continue to repeatedly address this same issue as
it does not pertain to the merits of Mr. Schneider’s claim. To the extent Mr.
Schneider alleges that the Court “failed to give adequate reasons” for its decisions,
or “clearly and deliberately misconstrued controlling Illinois law,” R. 359 at 20, this
is merely Mr. Schneider’s opinion, and describes a judicial disagreement as opposed
to a personal bias. Mr. Schneider’s opinion in this regard does not demonstrate that
the Court has a personal bias against him, and thus does not constitute a sufficient
basis to support recusal.3
Mr. Schneider also argues that the Court has rushed him to trial without
giving him the opportunity to adequately discover the necessary evidence or
adequate time to prepare. Specifically, Mr. Schneider contends that the Court
“knew of [his] August 11, 2014 eviction . . . by the Will County Sheriff . . . and the
lost discovery evidence” that resulted from that eviction, but that the Court ruled
that “Schneider would not be permitted to obtain new discovery.” R. 359 at 10.
There is no basis for this allegation. According to Mr. Schneider, his eviction
occurred on August 11, 2014. He informed the Court of that fact at a hearing on
September 3, 2014, and requested postponement of his trial due to his recent
eviction. The Court granted that request and rescheduled the trial to February 2,
2015. This was nearly six months after Mr. Schneider’s eviction, and he assured the
Court that this date would be “no problem.” Nevertheless, the Court subsequently

Mr. Schneider also perceives bias in that the Court ruled against him on certain
motions in limine. The Court, however, also ruled in his favor on certain motions in
limine and deferred ruling on others. These too are judicial disagreements that do
not evince personal bias.

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agreed to postpone the trial twice more at Mr. Schneider’s request, finally setting
the trial date of August 22, 2016.
The Court’s willingness to repeatedly postpone Mr. Schneider’s trial date is
contrary to Mr. Schneider’s allegation that the Court “insisted” that his trial go
forward on April 25, 2016, despite Mr. Schneider suffering a second eviction on
March 31, 2016. R. 359 at 25. The fact that his trial was postponed until August
also belies Mr. Schneider’s allegation that he has been prejudiced by the fact that
the judge in his state court proceedings was unavailable to testify in April 2016. See
id. at 26. That state court judge was available to testify in the trial scheduled for
August 22, 2016.
Furthermore, whenever Mr. Schneider has reported that he lacked certain
documents, the Court has ordered defense counsel to furnish Mr. Schneider with
copies of those documents. Contrary to Mr. Schneider’s allegations, see R. 359 at 24,
the Court also gave him permission to seek discovery of electronic recordings of the
state court proceedings that underlie his claims and explained how he should
contact the Circuit Court to learn of the availability of such recordings. See R. 298.
The Court’s efforts to accommodate Mr. Schneider’s discovery requests (all of which
were untimely) demonstrate that his allegations that the Court has exhibited “rage
and antagonism at [him]” are conclusory and unfounded. In over three years on the
bench the undersigned judge has neither felt, nor exhibited, “rage” towards any
party.

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Mr. Schneider also alleges that the Court appointed the firm of Morgan Lewis
& Bockius LLP to assist him as a “pretext to limit [his] claims and proceed to trial
on the limited claims of deliberate indifference to [his] right to early release.” R. 359
at 11. This argument is not a basis for the undersigned judge’s recusal. Presumably,
Mr. Schneider was unhappy with his Morgan Lewis attorneys because they would
not pursue his theory that defense counsel were improperly appointed. But he
admits that Morgan Lewis sought to focus on the merits of his claims—whether
Defendants were deliberately indifferent to the length of time Mr. Schneider was in
jail. Id. Further, defense counsel stated on the record on August 18, 2016 that Mr.
Schneider’s Morgan Lewis attorneys were diligent in their representation and it
was readily apparent that they were prepared to prosecute Mr. Schneider’s claims
at the trial set for August 22, 2016. This is unsurprising considering Morgan Lewis
is one of the preeminent law firms in the United States. Although Mr. Schneider
may be disappointed that his Morgan Lewis attorneys refused to pursue his theory
that defense counsel were improperly appointed, this was an unreasonable
expectation considering the Court’s prior rulings on this issue. Further, Mr.
Schneider’s misconception regarding what is relevant to the merits of his case is not
a basis to conclude that the Court appointed Morgan Lewis with the intent to stifle
Mr. Schneider’s desire to vindicate his theory that defense counsel were improperly
appointed. The only conclusion a reasonable person could reach from the fact that
the Court appointed Morgan Lewis to represent Mr. Schneider is that the Court
hoped to give him the best chance possible to have his case decided on the merits.

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There is no basis on these facts to countenance Mr. Schneider’s contention that the
Court’s appointment of Morgan Lewis to represent him was a pretext.
Mr. Schneider also alleges that the Court exhibited bias against him by
“sanctioning” him because he sent a “letter to the Will County Board members in
the interest [of] initiating settlement negotiations.” R. 359 at 9. Mr. Schneider
contends that the sanction the Court imposed was “disallowing settlement talks.”
Id. The Court directed Mr. Schneider not to contact the Will County Board members
because they are effectively defendants in this case and represented by counsel. But
the Court never “disallowed settlement talks.” To the contrary, the Court has
frequently encouraged the parties to explore settlement. No reasonable person
would conclude that the Court’s order that Mr. Schneider refrain from directly
contacting Will County board members constituted a sanction or exhibited bias of
any kind.
The only allegation Mr. Schneider makes that might possibly support the
undersigned judge’s recusal is that the Court allegedly engaged in ex parte
communication with defense counsel “sometime before January 26, 2016,” when
defense counsel “provided [the Court] with a copy of the letter [Mr. Schneider] sent
to the Will County Board Members.” R. 359 at 33. The Court presumes Mr.
Schneider believes an ex parte communication took place because at the hearing on
January 26, 2016, when this issue was addressed the Court told him the Court did
not need to review the letter he sent to the board members in order to rule that such
a communication was improper. The Court had not previously seen the letter or

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engaged in ex parte communications with defense counsel. Mr. Schneider’s
allegations in this regard are mere conjecture and supposition, and are untrue. As
such, these allegations do not support the undersigned judge’s recusal.
Conclusion
For the foregoing reasons, the Court finds that Mr. Schneider has failed to
demonstrate actual bias under 28 U.S.C. § 144 sufficient to support the undersigned
judge’s recusal. For the same reasons, the Court also finds that no reasonable
person would perceive an appearance of bias in these circumstances such that
recusal is also not called for under 28 U.S.C. § 455. Therefore, Mr. Schneider’s
motion, R. 359, is denied.
ENTERED:

______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: August 23, 2016

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