Mischler v. Clary

Filing 28

MEMORANDUM & ORDER:Plaintiff's motion for judicial disqualification (R. 27 ) is DENIED. Plaintiff's second amended complaint will be STRICKEN from the record. The case will proceed against defendants Susan Stokley Clary, the Kentucky Sup reme Court, and Larrin Thompson on the allegations as contained in the First Amended Complaint [Doc. 12]. The Clerk of the Court shall issue the summons for defendant Clary in her official and individual capacity, defendant Thompson in her individu al capacity, and the Kentucky Supreme Court in its official capacity. The Clerk shall then provide the completed summons, USM 285 form, and a copy of the first amended complaint [Doc. 12] to the United States Marshals Service for service of process. IT IS SO ORDERED. Signed by Senior U.S. District Judge Thomas W. Phillips. (AKR)cc: COR, paper copy to Plaintiff via US Mail

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AT FRANKFORT
AMY JERRINE MISCHLER,
Plaintiff,
v.
SUSAN STOKLEY CLARY, et al.,
Defendants.

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No. 3:13-CV-26

MEMORANDUM AND ORDER

Plaintiff has filed a Motion for Judicial Disqualification [Doc. 27]. In support of
this motion, plaintiff complains that this Court’s impartiality is in question based on two
recent rulings in case number 7:13-CV-8, Mischler v. Stevens. In that case, plaintiff filed
a motion for miscellaneous relief in which she requested various legal rulings on matters
of Kentucky state court jurisdiction that she claims is relevant to her tort claim of outrage.
That motion was denied as well as her request for reconsideration. As a result of those
adverse rulings, plaintiff contends that the Court’s impartiality is in question and the
undersigned will demonstrate the same bias in the instant case as in case number 7:13CV-8.
Judicial disqualification is required under 28 U.S.C. § 455(a) “in any proceeding
in which [the Court’s] impartiality might reasonably be questioned.” The standard for
judicial disqualification is set forth in Liteky v. United States, 510 U.S. 540 (1994):

First, judicial rulings alone almost never constitute a valid basis for a bias
or partiality motion. … 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 … 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. … Not establishing bias or partiality … are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are within the
bounds of what imperfect men and women, even after having been
confirmed as federal judges, sometimes display. A judge’s ordinary efforts
at courtroom administration – even a stern and short-tempered judge’s
ordinary efforts at courtroom administration – remain immune.
Id. at 555.
The plaintiff has the burden of establishing objective evidence of bias, i.e.,
whether a reasonable person, knowing all the surrounding circumstances, would consider
the judge impartial. Gargallo v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 1992 WL
99456, at * 5 (6th Cir. May 12, 1992); United States v. Sammons, 918 F.2d 592, 599 (6th
Cir. 1990). “‘Personal’ bias is prejudice that emanates from some source other than
participation in the proceedings or prior contact with related cases [and] … arises out of
the judge’s background and associations.” Sammons, 918 F.2d at 599 (quoting Wheeler
v. Southland Corp., 875 F.2d 1246, 1251-52 (6th Cir. 1989)).

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The undersigned is also mindful that the Sixth Circuit has cautioned that “[t]here
is as much obligation upon a judge not to recuse himself when there is no occasion as
there is for him to do so when there is.” Easley v. Univ. of Mich. Bd. of Regents, 853
F.2d 1351, 1356 (6th Cir. 1988) (alteration in original) (citation omitted). In short,
unnecessary recusals waste judicial resources. City of Cleveland v. Krupansky, 619 F.2d
576, 579 (6th Cir. 1980). Likewise, granting groundless disqualification motions also
encourages judge-shopping.
The plaintiff has presented no objective evidence of bias, merely a disagreement
with the undersigned’s rulings. This is precisely within the scope of the Supreme Court’s
admonition in Liteky and is not a basis for disqualification. Therefore, plaintiff’s for
judicial disqualification [Doc. 27] is DENIED.
Upon review of the record, the Court also observes that the plaintiff has filed a
second amended complaint [Doc. 26]. Plaintiff requested and was given leave to file an
amended complaint against “only the remaining defendants in case number 3:13-cv-26”
[Doc. 23 at p. 3], specifically defendants Susan Stokley Clary, the Kentucky Supreme
Court, and Larrin Thompson, and she was directed to do so by October 14, 2015.
Plaintiff did not do so, but filed a late request for additional time to comply with the
Court’s order [Doc. 24]. Plaintiff was granted until and including November 13, 2015 to
file her amended complaint [Doc. 25]. However, Plaintiff’s second amended complaint
was not filed until November 16, 2015, and asserts claims against new defendants,
including defendants who have been previously dismissed in the consolidated case.
Accordingly, plaintiff has failed to comply with the orders of the Court and the second
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amended complaint will be STRICKEN from the record. The case will proceed against
defendants Susan Stokley Clary, the Kentucky Supreme Court, and Larrin Thompson on
the allegations as contained in the First Amended Complaint [Doc. 12].
The Clerk of the Court shall issue the summons for defendant Clary in her official
and individual capacity, defendant Thompson in her individual capacity, and the
Kentucky Supreme Court in its official capacity.

The Clerk shall then provide the

completed summons, USM 285 form, and a copy of the first amended complaint [Doc.
12] to the United States Marshal’s Service for service of process.
IT IS SO ORDERED.

s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE

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