Nelson et al v. Louise, et al

Filing 24

ORDER denying 22 Motion for Recusal of the undersigned. Signed by Magistrate Judge Docia L Dalby on 4/15/2011. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
WILLIAM NELSON, ET AL

CIVIL ACTION

VERSUS

NUMBER 10-827-RET-DLD

DERRICK LEWIS, ET AL
ORDER
This matter is before the court on a referral from the district court of plaintiff’s “motion
in request for the immediate recusal of magistrate judge Docia L. Dalby.” (rec. doc. 22)
Background
On December 9, 2010, the five plaintiffs filed a 259-page lawsuit against more than
50 defendants for alleged acts spanning a period of nine (9) years, arising out of an alleged
unlawful arrest in 2002. Each plaintiff also filed a motion to proceed in forma pauperis,
which had not yet been ruled upon when the case was transferred to the undersigned.
Thus, this case is now before the undersigned for a determination of pauper status under
28 U.S.C. § 1915.
As part of the screening process, and as explained to the plaintiffs previously, the
court ordered plaintiffs to file an amended complaint that conformed to Fed. R. Civ. P. 8
and Loral Rule 10.1, to determine whether or not plaintiffs raised non-frivolous issues, as
plaintiffs’ original complaint did not set forth a “short plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Plaintiffs were advised that no
recitation of every conversation and event over the course of 9 years was necessary;
instead, plaintiffs needed to allege just enough facts that would meet all the material
elements necessary to sustain recovery under some viable legal theory. (rec. doc. 21).
The Current Motion
In this motion, plaintiffs take issue with the fact that the undersigned magistrate
judge ordered plaintiffs to file an amended complaint. Plaintiffs state that the undersigned
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should recuse herself “pending a requested hearing” to “determine weather (sic) or not the
court I.Q, reading comprehension and understanding is suitable for him to oversee plaintiffs
(sic) Federal complaint.” (rec. doc. 22) Plaintiffs assert that the undersigned magistrate
judge “conjured up federal rules and local rules to hide his full knowledge of the full fact of
the matters at hand,” and states that the order to file an amended complaint is “to create
a method to dismiss plaintiffs (sic) suit.” Id. Plaintiffs state that these alleged acts did not
respect plaintiffs’ First, Sixth, and Fourteenth Amendment rights.” Id., at 6. Plaintiffs allege
that the undersigned magistrate judge “concentrated on how he could protect guilty state
and federal judges . . . and did not care about “liberty justice and the qualities of life
involving African Americans” and that this shows bias on the part of the magistrate judge.”
Id., at 6-7. The motion to recuse is based on one order (rec. doc. 21) issued by the
undersigned magistrate judge, which ordered the filing of an amended complaint, and held
the motions to proceed in forma pauperis in abeyance until such time as the amended
complaint was filed.
GOVERNING LAW AND ANALYSIS
There are two statutes that address recusal motions: 28 U.S.C. § 144 and 28 U.S.C.
§ 455. Plaintiff is unrepresented, and thus cannot meet the procedural requirements of
Section 144.1 Thus, recusal under 28 U.S.C. § 144 is not applicable in this situation.
This does not mean that pro se litigants have no mechanisms to protect themselves
from biased judges. On the contrary, a pro se litigant may raise exactly the same issues

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28 U.S.C. § 144 states as follows: “Whenever a party to any proceeding in a district court makes and
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 any adverse party, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding. The affidavit shall state the facts and the reasons
for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the
term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time.
A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of
record stating that it is made in good faith.”

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relating to a judge’s perceived impartiality under 28 U.S.C. § 455,2 but there is no statutory
language which requires an affidavit or good faith certificate from counsel of record.
However, recusal under 28 U.S.C. § 455 is unwarranted. In determining whether
recusal is appropriate under this statute, the Fifth Circuit has stated that the recusal
standard is an objective one. Plaintiff must demonstrate that a reasonable and objective
person, knowing all the facts and circumstances of the case, would harbor doubts
concerning the undersigned’s partiality. Patterson v. Mobil Oil Corp., 335 F.3d 476, 484
(5th Cir. 2003), cert. denied, 640 U.S. 1108, 124, St. Ct. 1071 (2004). See, also Trevino v.
Johnson, 168 F.3d 173, 178 (5th Cir. 1999). This showing must be based on specific facts
so as to avoid giving a party a “random veto over the assignment of judges.” Capizzo v.
State, 199 WL 539439 at *1 (E.D. La. July 22, 1999) Also, a section 455 claim must not be
so broadly construed that “recusal is mandated upon the merest unsubstantiated
suggestion of personal bias or prejudice.” United States v. Cooley, 1 F.3d 985, 993 (10th
Cir. 1993).
Finally, under either statute, any bias or prejudice must arise from an extrajudicial
source, which is not the case here. Capizzo, at *2. Plaintiff has failed to demonstrate any
personal bias by the undersigned. The basis of plaintiffs’ motion is that the undersigned
issued an order giving plaintiffs 30 days to amend their complaint in compliance with the
federal rules and local rules, and that the undersigned did so to protect the guilty and
because she does not care about the rights of African-Americans. This judicial ruling was
in connection with this case, and not from any extrajudicial source.

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28 U.S.C. § 455, reads in pertinent part, as follows: (a) Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal
bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding; . . . .

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Judicial rulings by the undersigned are insufficient to justify recusal as the Fifth
Circuit has noted that “judicial rulings alone almost never constitute a valid basis for a bias
or partiality motion.” United States v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997).
Moreover, plaintiff has failed to provide any specific facts that would lead a reasonable and
objective person to question the undersigned’s impartiality. Here, the undersigned issued
only one order, an order which allowed plaintiffs the opportunity to amend their complaint
in keeping with the federal rules and local rules; explained that the claim needed to include
all the material elements necessary to sustain recovery under some viable legal theory; and
advised plaintiffs that a recitation of every conversation and incident over the course of nine
(9) years is not necessary to maintain a claim. As plaintiffs’ claims consists of events which
occurred over nine (9) years, the amended complaint is necessary for prescription
purposes. In addition, and among other things, plaintiffs’ original complaint seems to allege
acts committed by state court prosecutors and state court judges, which also seem to have
been litigated previously. These issues alone demonstrate the need for a less ambiguous
and voluminous complaint. Therefore, no recusal is necessary.
Accordingly,
Plaintiffs’ motion for recusal of the undersigned (rec. doc. 22) is DENIED.
Signed in Baton Rouge, Louisiana, on April 15, 2011.

MAGISTRATE JUDGE DOCIA L. DALBY

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