Rodriguez v. ATF UC 3749 et al

Filing 391

OPINION AND ORDER: The motion for recusal 390 is DENIED. The parties are REMINDED this case remains STAYED. Signed by Judge Cristal C Brisco on 1/6/2025. (Copy mailed to pla)(ash)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ENEDEO RODRIGUEZ, JR.,
Plaintiff,
v.

CAUSE NO. 3:18-CV-899-CCB-JEM

KYLE LERCH, et al.,
Defendants.
OPINION AND ORDER
Enedeo Rodriguez, Jr., a prisoner without a lawyer, filed a motion asking Judge
Cristal C. Brisco to recuse under 28 U.S.C. § 455. ECF 390. “Under the recusal statute,
‘[a]ny ... judge, ... of the United States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned,’ 28 U.S.C. § 455(a), or when the
judge has a [specific] disqualifying circumstance [listed in § 455(b)].” United States v.
Walsh, 47 F.4th 491, 499 (7th Cir. 2022). Rodriguez lists three reasons why he wants
Judge Brisco to recuse.
1. Prior Association with Barnes & Thornburg LLP:
Judge Brisco was an associate at Barnes & Thornburg LLP, which
represented a Defendant in this case. This prior association creates a
potential conflict of interest and appearance of impropriety.
2. Appearance of Bias:
Judge Brisco’s Order of a Motion to Stay while Plaintiff was in the
midst of obtaining viable discovery supporting his claims, despite no
apparent urgency or justification, creates an appearance of bias in
favor of the Defendant’s.
3. Potential for Delay and Prejudice
Judge Brisco’s actions may have been intended to cause delay and
prejudice to Plaintiff’s case, further demonstrating the need for recusal.

ECF 390 at 1-2. The first reason implicates § 455(b), but all three raise issues under §
455(a).
Relevant to the Barnes & Thornburg argument, under § 455(b)(2), a judge must
recuse when, “in private practice he served [with] a lawyer with whom he previously
practiced law served during such association as a lawyer concerning the matter . . ..”
Judge Brisco was an associate at Barnes & Thornburg from 2006 to 2013, but at no time
has any Barnes & Thornburg lawyer represented any party in this case. The docket
shows a Barnes & Thornburg address for Attorney Jacob T. Palcic, but that is not where
he worked when he represented defendants in this case. Both Attorney Palcic’s Notice
of Appearance and his Motion to Withdraw show he was employed at that time by
Yoder, Ainlay, Ulmer & Buckingham, LLP – the same law firm as his co-counsel. ECF 32
and 175. The reason the docket mentions Barnes & Thornburg is because Attorney
Palcic subsequently joined that firm and the court’s computer docket system displays
his current contact information. Judge Brisco’s prior employment at Barnes &
Thornburg is not a basis for recusal under § 455(b)(2).
The Seventh Circuit has “expressed doubts about recusal under § 455(a) when
the more detailed provisions of § 455(b) clearly allow the judge to sit,” but they have
also explained that “[t]he lack of a § 455(b) violation is instructive but not conclusive
[because a]ffiliations that pose risks similar to those identified in § 455(b) may call for
disqualification under § 455(a).” In re Gibson, 950 F.3d 919, 927 (7th Cir. 2019).
When evaluating whether a judge’s impartiality might reasonably be questioned,
“the reasonable person under § 455(a) is well-informed about the surrounding facts and
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circumstances and not hypersensitive or unduly suspicious.” In re Gibson, 950 at 925
(quotation marks omitted). The facts in this case show that Judge Brisco left Barnes &
Thornburg in 2013. Attorney Palcic withdrew from this case in 2023 and subsequently
went to work for Barnes and Thornburg. ECF 175. Judge Brisco was assigned to this
case in 2024. ECF 308. The fact that a former attorney for some defendants subsequently
joined a law firm where Judge Brisco was employed more than a decade ago is not a
basis for recusal under § 455(a) because these facts do not raise an appearance of
impropriety for a reasonable person.
The second reason Rodriguez asserts Judge Brisco should recuse is because she
issued a stay in this case. ECF 390 at ¶ 2.
First, judicial rulings alone almost never constitute a valid basis for a bias
or partiality motion. See United States v. Grinnell Corp., 384 U.S. at 583. In
and of themselves (i.e., apart from surrounding comments or
accompanying opinion), they cannot possibly show reliance upon an
extrajudicial source; and can only in the rarest circumstances evidence the
degree of favoritism or antagonism required (as discussed below) when
no extrajudicial source is involved. Almost invariably, they are proper
grounds for appeal, not for recusal. Second, opinions formed by the judge
on the basis of facts introduced or events occurring in the course of the
current proceedings, or of prior proceedings, do not constitute a basis for
a bias or partiality motion unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. Thus, judicial
remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge. They may do so if they reveal an
opinion that derives from an extrajudicial source; and they will do so if
they reveal such a high degree of favoritism or antagonism as to make fair
judgment impossible.
Liteky v. United States, 510 U.S. 540, 555 (1994). The stay order alone is not a valid basis
for recusal and there are no additional facts showing reliance on an extrajudicial source.

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Judge Brisco explained why she stayed this case two months after it was assigned to
her:
This case was recently reassigned. It currently has sixteen pending
motions. Over more than five years, this case has developed an extensive
procedural history including four appeals to the Seventh Circuit. It will
take time, perhaps an extensive amount of time, to fully review and justly
rule on the pending motions once they are fully briefed.
ECF 376 (citations omitted). Among the pending motions was a Motion to Stay filed by
Rodriguez. ECF 355. Though his reason for requesting a stay is different than the reason
the case is currently stayed, his desire for a stay reinforces the conclusion that the
issuance of that stay does not raise an appearance of impropriety for a reasonable
person and is not a basis for recusal under § 455(a).
The third reason Rodriguez asserts Judge Brisco should recuse is because her
actions may have been intended to cause delay and prejudice to Plaintiff’s case. ECF 390
at ¶ 3. This claim is unsupported by any facts. Mere speculation is more of an indication
of hypersensitivity or undue suspiciousness than it is of a well-informed understanding
of the facts and circumstances. This conjecture about Judge Brisco’s motives does not
raise an appearance of impropriety for a reasonable person and is not a basis for recusal
under § 455(a).
Rodriguez is not happy this case is delayed – neither is the court. As explained in
the order staying this case, it takes time to fully review and justly rule on the cases
before the court. The stay was (and is) intended to save the resources of the court and
the parties. It was (and is) intended to prevent the case from becoming more
complicated before the court can address the numerous pending motions and
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implement an appropriate scheduling plan so this case can proceed to an orderly
conclusion.
For these reasons, the motion for recusal (ECF 390) is DENIED. The parties are
REMINDED this case remains STAYED.
SO ORDERED on January 6, 2025.
s/ Cristal C. Brisco
JUDGE
UNITED STATES DISTRICT COURT

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