Verdun v. Cain et al
Filing
42
ORDER AND REASONS denying 40 MOTION for Recusal filed by Victor Verdun, Jr. Signed by Judge Lance M Africk on 3/28/2013.(blg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
VICTOR VERDUN, JR.
CIVIL ACTION
VERSUS
No. 09-3326
BURL CAIN ET AL.
SECTION I
ORDER AND REASONS
Before the Court is the motion and affidavit1 filed by petitioner, Victor Verdun, Jr.
(“Verdun”), for recusal of the undersigned U.S. District Judge from the instant case pursuant to 28
U.S.C. §§ 144 and 455. Section 144 provides that an affidavit supporting recusal “shall be
accompanied by a certificate of counsel of record stating that it is made in good faith.” Pro se
petitioners are not excused from § 144’s certificate requirement.2 Verdun has submitted no such
certificate, and § 144 relief is unavailable. Additionally, for the reasons discussed below, the
affidavit is legally insufficient. See Emmett v. Allred Unit, 428 F. App’x 352, 354 (5th Cir. 2011)
(district court judge may rule on legal sufficiency of §144 affidavit);United States v. Gonzalez, 348
F. App’x 4, 6 (5th Cir. 2009) (observing that §§ 144 and 455 involve “substantively similar”
requirements). The Court proceeds to analyze Verdun’s motion pursuant to § 455.
Section 455(b)(1) requires recusal of a judge who “has a personal bias or prejudice
concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.”
1
R. Doc. No. 40.
See Parker v. Bd. of Supervisors Univ. of Louisiana-Lafayette, 270 F. App’x 314, 316 (5th Cir.
2008) (“Parker failed to accompany his motion asserting bias with a timely and sufficient affidavit
and a certificate of counsel of record stating that it is made in good faith, even if signed by himself
pro se, as required by § 144.”) (quotation omitted); see also Green v. Stevenson, No. 12-432, 2012
WL 2154123 (E.D. La. June 13, 2012) (Shushan, M.J.); Buckenberger v. Cain, No. 10-1194, 2010
WL 2653337 (E.D. La. June 25, 2010) (Knowles, M.J.).
2
Section 455(a) requires recusal when a judge’s “impartiality might reasonably be questioned.”
“These provisions afford separate, though overlapping, grounds for recusal.” Andrade v. Chojnacki,
338 F.3d 448, 454 (5th Cir. 2003). When applying the objective standard of whether a judge’s
“impartiality might reasonably be questioned,” the relevant perspective is that of “the well-informed,
thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person.”
Id. at 455 (quoting United States v. Jordan, 49 F.3d 152, 156 (5th Cir. 1995)).
The first basis for Verdun’s recusal motion is that the undersigned “ has ignored such
glaringly obvious evidence favorable to this Petitioner, which produced injustice to Petitioner, that
the public’s confidence in the judicial process will be undermined.”3 Verdun asserts that the
undersigned will continue “avoiding the facts and evidence presented on Rule 60(b) motion for
relief,” “caus[ing] injustice to ensue in future cases on the same issues.”
A court’s rulings “can only in the rarest circumstances evidence the degree of favoritism or
antagonism [required for recusal] when no extrajudicial source is involved. Almost invariably, they
are proper grounds for appeal, not for recusal.” Andrade, 338 F.3d at 455 (quoting Liteky v. United
States, 510 U.S. 540, 555 (1994). Only rulings that reflect a “deep-seated and unequivocal
antagonism that would render fair judgment impossible” require recusal. Id. at 556. The alleged
avoidance of facts and evidence suggests grounds for an appeal rather than the deep-seated
antagonism required for recusal.
The second basis for the recusal motion is that the undersigned “will be a party named in a
1983 suit that Petitioner is filing in relation to this case, and he will clearly be conflicted out of
continuing in the case.”4 Section 455(a)(5), which addresses recusal when a judge is a party, does
3
R. Doc. No. 40, at 3.
Id.
4
not apply to the present proceeding because the undersigned is not a party. The possibility of a
separate action in which the undersigned is a named defendant does not require recusal. “A judge
is not disqualified merely because a litigant sues or threatens to sue him.” In re Bush, 232 F. App’x
852, 854 (11th Cir.2007) (quoting United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977));
see also In re Trader, 419 F. App’x 170, 170 (3d Cir. 2011); In re Taylor, 417 F.3d 649, 652 (7th
Cir. 2005); United States v. Studley, 783 F.2d 934, 939-40 (9th Cir. 1986).
For the foregoing reasons,
IT IS ORDERED that the motion is DENIED.
New Orleans, Louisiana, March 28, 2013.
_____________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE
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