Peters v. Butler et al
ORDER re 99 MOTION for Recusal filed by Scott Peters. DENIED IN PART as to undersigned. Signed by Magistrate Judge Donald G. Wilkerson on 8/7/2017. (sgp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KIMBERLY BUTLER, et al.,
Case No. 3:16-cv-382-NJR-DGW
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion to Recuse filed pursuant to 28 U.S.C. § 144 by
Plaintiff on February 9, 2017 (Doc. 99).
The motion is DENIED IN PART as to the
Title 28 U.S.C. § 144 provides that 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 an adverse party,” the judge must recuse himself. The statute allows for only one shot
at seeking such recusal: “A party may file only one such affidavit in any case.” Id. The affidavit
must be accompanied by a “certificate of counsel of record stating that it is made in good faith.”
Id. In considering the affidavit, the Court must accept the truth of the statements made therein,
even if they are known to be false. United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir.
1985), overruled in part on other grounds by Fowler v. Butts, 829 F.3d 788, 791 (7th Cir. 2016).
Recusal is mandatory, not discretionary, if the terms of the statute are met. However, the party
seeking recusal bears a heavy burden and the affidavit must “aver[ ] facts that, if true, would
convince a reasonable person that bias exists.” Id. And, the statements must “show that the bias
is personal rather than judicial.” Id. The requirements of the statute are to be strictly enforced
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because of the potential for abuse.
United States v. Betts-Gaston, 860 F.3d 525, 537 (7th Cir.
Plaintiff’s affidavit only sets forth judicial bias – he essentially disagrees with the Court’s
findings of fact and legal conclusions. The affidavit does not set forth any personal bias that
would warrant recusal. Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir. 2004) (“judicial
rulings alone will almost never constitute a valid basis for disqualification under § 144”).
Plaintiff, who is proceeding pro se, also has no attorney’s certification stating that the motion is
made in good faith. See Betts-Gaston, 860 F.3d at 537-528; Robinson v. Gregory, 929 F.Supp.
334, 337-8 (S.D. Ind. 1996). Plaintiff’s motion does not comply with the statute and does not
otherwise set forth any personal bias that would warrant recusal. United States v. Ming, 466 F.2d
1000, 1004 (7th Cir. 1972) (“A trial judge has as much obligation not to recuse himself when there
is no occasion for him to do so as there is for him to do so when the converse prevails.”).
Plaintiff’s motion is DENIED IN PART as to the undersigned.
DATED: August 7, 2017
DONALD G. WILKERSON
United States Magistrate Judge
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