Mischler v. Stevens et al

Filing 203

MEMORANDUM AND ORDER: Plas motion for judicial disqualification (Doc. 199 ) is DENIED. Signed by Judge Thomas W. Phillips. (TDA)cc: COR & Mischler

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
AT PIKEVILLE
AMY JERRINE MISCHLER,
Plaintiff,
v.
JONAH LEE STEVENS,
Defendant.

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No. 7:13-CV-8

MEMORANDUM AND ORDER
Plaintiff has filed a Motion to Disqualify the undersigned from this closed civil case
[Doc. 199]. In support of this motion, plaintiff complains that this Court’s impartiality is
in question “due to his disparate legal treatment of two forms of jurisdiction.” This
complaint apparently relates to the Court’s summary judgment ruling that plaintiff’s tort
claim against defendant Stevens was time-barred [Docs. 193, 194]. Notably, the Sixth
Circuit Court of Appeals affirmed that ruling and specifically held that plaintiff’s
“argument that Judge Paxton lacked jurisdiction to enter the [state-court] order is not
relevant to the determination of whether her tort claim is time-barred” [Doc. 197]. Further,
plaintiff speculates that the undersigned is “too naïve to believe the depth of deception and
manipulation” by the defendant.
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).
As with her previous motion for disqualification, 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. Further, plaintiff has presented no factual or legal basis for recusal in

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a case in which all matters have been resolved on the merits. Therefore, plaintiff’s motion
for judicial disqualification [Doc. 199] is DENIED.
IT IS SO ORDERED.

s/ Thomas W. Phillips
SENIOR UNITED STATES DISTRICT JUDGE

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