Hartstein v. Pollman et al

Filing 70

MEMORANDUM AND ORDER Overruling 67 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by Karen Hartstein, Affirming 66 Order on Motion for Extension of Time to File Response/Reply filed by Karen Hartstein, Denying in Part and Referring 68 MOTION for Recusal filed by Karen Hartstein to Magistrate Judge Frazier. Response Deadline for 59 MOTION for Summary Judgment set 11/30/2015.Signed by Judge J. Phil Gilbert on 11/12/15. (mar)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KAREN HARTSTEIN,
Plaintiff,
v.

Case No. 13-cv-1232-JPG-PMF

L. POLLMAN, DR. D. KRUSE and WARDEN
OF GREENVILLE CORRECTIONAL
CENTER,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on plaintiff Karen Hartstein’s motion to recuse the
district judge and magistrate judge assigned to this case (Doc. 68) and her appeal (Doc. 67) of
Magistrate Judge Philip M. Frazier’s September 28, 2015, order (Doc. 66).
I.

Motion for Recusal
In this motion, Hartstein asks the undersigned judge and the magistrate judge assigned to

this case to recuse themselves pursuant to 28 U.S.C. § 455 on the grounds that the judges have
displayed partiality toward the defendants by ruling in their favor and/or against her on several
issues in this case. Two provisions of § 455 are implicated by Hartstein’s allegations: § 455(a)
and (b)(1).1
Section 455(a) states, “Any justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”
The standard set forth by this provision is objective and “asks whether a reasonable person
perceives a significant risk that the judge will resolve the case on a basis other than the merits.” In
re Hatcher, 150 F.3d 631, 637 (7th Cir. 1998) (quoting Hook v. McDade, 89 F.3d 350, 354 (7th
Recusal on the grounds of bias is also required under 28 U.S.C. § 144, but that statute requires a
supporting affidavit setting forth specific extrajudicial facts, which Hartstein has not filed.
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Cir. 1996)). The decision to recuse under this provision turns not on the judge’s actual partiality
but on the appearance of partiality. Hatcher, 150 F.3d at 637 (citing Liteky v. United States, 510
U.S. 540, 548 (1994)). “Section 455(a) requires recusal if the judge’s impartiality might
reasonably be questioned by a well-informed, thoughtful observer rather than to a hypersensitive
or unduly suspicious person.” O’Regan v. Arbitration Forums, Inc., 246 F.3d 975, 988 (7th Cir.
2001) (internal quotations omitted); accord Nichols v. Alley, 71 F.3d 347, 351 (10th Cir. 1995).
Under § 455(b)(1), a judge must recuse himself “[w]here he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b)(1). Under both provisions, the partiality or bias justifying
recusal must arise from an extrajudicial source. O’Regan, 246 F.3d at 988; In re City of
Milwaukee, 788 F.3d 717, 720 (7th Cir. 2015). “[N]either judicial rulings nor opinions formed by
the judge as a result of current or prior proceedings constitute a basis for recusal ‘unless they
display a deep-seated favoritism or antagonism that would make fair judgment impossible.’”
United States v. White, 582 F.3d 787, 807 (7th Cir. 2009) (quoting Liteky, 510 U.S. at 555).
Hartstein has alleged nothing derived from an extrajudicial source that would demonstrate
the undersigned judge is biased or that would cause a reasonable, well-informed observer to
perceive a significant risk that the case would be decided on anything other than its merits. For
these reasons, the Court will deny Hartstein’s motion for recusal of the undersigned judge.
The Court refers the remainder of the motion requesting recusal of Magistrate Judge
Frazier to Magistrate Judge Frazier for his consideration in the first instance. “The initial decision
whether or not to adjudicate a case rests with the individual judge assigned to it.” 12 James Wm.
Moore et al., Moore’s Federal Practice § 63.60[1][a].
II.

Appeal of Magistrate Judge’s Order
In his September 28, 2015, order (Doc. 66), Magistrate Judge Frazier extended Hartstein’s
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deadline to respond to the defendants’ July 17, 2015, summary judgment motion until October 12,
2015. Earlier, she had asked the Court for an extension of three months from the original August
20, 2015, deadline, until she is released from her confinement in prison and place in a half-way
house. She stated that she has limited access to the law library and no access to a typewriter, some
of her legal materials, and her inmate witnesses. Magistrate Judge Frazier extended her response
period to September 30, 2015. Hartstein then requested a longer extension for the same reasons
she gave earlier plus the late delivery of the Court’s prior order and the fact that September
contains Jewish holidays when she cannot work. Again, Magistrate Judge Frazier extended the
deadline to October 12, 2015. It is from that order that Hartstein appeals. In her appeal of this
order, Hartstein argues the extension was not reasonable.
A district court reviewing a magistrate judge’s decision on nondispositive issues should
modify or set aside that decision if it is clearly erroneous or contrary to law. See Fed. R. Civ. P.
72(a); 28 U.S.C. § 636(b)(1)(A). The Court may also sua sponte reconsider any matter
determined by a magistrate judge. L.R. 73.1(a); Schur v. L.A. Weight Loss Ctrs., Inc., 577 F.3d
752, 760 (7th Cir. 2009).
The Court has reviewed Magistrate Judge Frazier’s order and finds it is not clearly
erroneous or contrary to law. Magistrate Judge Frazier allowed Hartstein reasonable extensions
when warranted, although not the length of extensions she requested. Additionally, the Court
notes that the briefing period for her appeal has effectively allowed her an additional extension of
time to the original date she requested – three months from the original August 20, 2015, deadline
– and no further extension is warranted.
III.

Conclusion
For these reasons, the Court:
•

DENIES in part Hartstein’s motion for recusal to the extent it requests recusal of the
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undersigned judge (Doc. 68);
•

REFERS the motion for recusal of Magistrate Judge Frazier to Magistrate Judge Frazier
pursuant to Local Rule 72.1(a)(1) (Doc. 68);

•

AFFIRMS Magistrate Judge Frazier’s September 28, 2015, order (Doc. 66);

•

OVERRULES Hartstein’s appeal (Doc. 67);

•

ORDERS that Hartstein shall have up to and including November 30, 2015, to respond to
the defendants’ summary judgment motion; and

•

WARNS Hartstein that no further extensions will be granted absent extraordinary
circumstances.

IT IS SO ORDERED.
DATED: November 12, 2015
s/J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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