McCarthy v. Servitto et al

Filing 17

ORDER denying 16 Motion for Reconsideration ; denying 16 Motion to Disqualify Judge. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PATRICK McCARTHY,
Plaintiff,

CASE NO. 11-13889
HON. LAWRENCE P. ZATKOFF

v.
DEBORAH A. SERVITTO, MARILYN
KELLY, MICHAEL F. CAVANAGH, MAURA
D. CORRIGAN, ROBERT P. YOUNG, JR., STEPHEN
J. MARKMAN, DIANE M. HATHAWAY, and ALTON
THOMAS DAVIS,
Defendants.
____________________________________________/

OPINION AND ORDER
AT A SESSION of said Court, held in the
United States Courthouse, in the City of Port Huron,
State of Michigan, on the 15th day of November, 2011
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Plaintiff’s Motion for Reconsideration (Docket #16) of
the Court’s Opinion and Order dated October 28, 2011, wherein the Court granted Defendants’
motion to dismiss Plaintiff’s cause of action based on judicial immunity. Local Rule 7.1(h)(2) of
the Eastern District of Michigan’s Local Rules provides that no response to a motion for
reconsideration is permitted unless ordered by the Court. In this case, the Court concludes that no
response is necessary. The Court further concludes that the facts and legal arguments are adequately
set forth in the brief submitted. Therefore, finding that the determination of the Motion for
Reconsideration will not be aided by oral argument, and pursuant to E.D. Mich. L.R. 7.1(f)(2), this

Court ORDERS that the Motion for Reconsideration be decided upon the brief submitted, without
this Court entertaining oral arguments. For the reasons that follow, Plaintiff’s Motion for
Reconsideration is DENIED.1

II. LEGAL STANDARD
In order to obtain reconsideration of a particular matter, the party bringing the motion for
reconsideration must: (1) demonstrate a palpable defect by which the court and the parties have been
misled; and (2) demonstrate that “correcting the defect will result in a different disposition of the
case.” E.D. Mich. L.R. 7.1(h). See also Graham ex rel. Estate of Graham v. County of Washtenaw,
358 F.3d 377, 385 (6th Cir. 2004); Aetna Cas. and Sur. Co. v Dow Chemical Co., 44 F.Supp.2d 865,
866 (E.D. Mich. 1999); Kirkpatrick v. General Electric, 969 F.Supp. 457, 459 (E.D. Mich. 1997).
“[T]he court will not grant motions for rehearing or reconsideration that merely present the same
issues ruled upon by the court, either expressly or by reasonable implication.” E.D. MICH. LR
7.1(h)(3).

III. ANALYSIS
The Court hereby denies Plaintiff’s Motion for Reconsideration. In essence, Plaintiff’s
Motion for Reconsideration: (a) reiterates the same facts and arguments he set forth when opposing
Defendant’s motion to dismiss, and (b) asks the Court to revisit the same issues expressly ruled upon
by the Court in deciding Defendant’s motion to dismiss. The only new argument set forth in the

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The title of Plaintiff’s filing also suggests that he is filing a motion to disqualify the undersigned
based on the undersigned’s prejudice and bias against Plaintiff. This “motion” is discussed
below.
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Motion for Reconsideration is Plaintiff’s newly-presented suggestion that the undersigned is
prejudiced and biased against Plaintiff and should be disqualified pursuant to 28 U.S.C. §§ 144 and
455. Plaintiff offers the theory that the undersigned is in a conspiracy with Defendants to deprive
Plaintiff of his constitutional rights, i.e., Plaintiff now alleges that the undersigned is participating
in the same orchestrated acts against Plaintiff as Plaintiff has alleged Defendants have in the past.
The Court finds that Plaintiff’s filings and arguments are not sufficient to cause the undersigned to:
(1) reinstate Plaintiff’s cause of action, or (2) disqualify himself.
First, to force a judge to recuse himself under Section 144, a litigant must submit, along with
his motion, an affidavit stating “the facts and the reasons for [his] belief that bias or prejudice
exists.” 28 U.S.C. § 144. Upon the filing of a “timely and sufficient affidavit,” Section 144 mandates
that the assigned “judge shall proceed no further, but another judge shall be assigned to hear such
proceeding.” Id.; see also Bhd. of Locomotive Firemen and Enginemen v. Bangor & Aroostook R.R.
Co., 380 F.2d 570, 576 (D.C. Cir. 1967) (“The disqualification statute, 28 U.S.C. § 144, is
mandatory and automatic, requiring only a timely and sufficient affidavit alleging personal bias or
prejudice of the judge.”). “Importantly, the mere fact that a party has filed a § 144 motion,
accompanied by the requisite affidavit and certificate of counsel, does not automatically result in
the challenged judge's disqualification.” Robertson v. Cartinhour, 691 F. Supp. 2d 65, 77 (D.D.C.
2010); see also United States v. Miller, 355 F. Supp. 2d 404, 405 (D.D.C. 2005) (“disqualification
is not automatic upon submission of affidavit and certificate”). Rather, recusal is required only upon
the filing of a “timely and sufficient affidavit” alleging personal bias or prejudice of the judge. 28
U.S.C. § 144. In this case, Plaintiff has not filed an affidavit that set forth “the facts and the reasons
for [his] belief that bias or prejudice [of the undersigned] exists.” Instead, Plaintiff’s affidavit

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simply restates what he believes Defendants did wrong, without setting forth any statement in the
affidavit regarding bias or prejudice by the undersigned. As such, the Court finds that the affidavit
is not sufficient.
Second, Section 455(a) provides, in pertinent part, that a federal judge “shall disqualify
himself in any proceeding where his impartiality might reasonably questioned.” Importantly, the
law is well-established that adverse judicial decisions can form the basis for recusal only in the most
extraordinary circumstances. See Liteky v. United States, 510 U.S. 540, 555 (1994); United States
v. Grinnell Corp., 384 U.S. 563 (1966). In his Motion for Reconsideration, Plaintiff has offered
conclusory allegations of improprieties by the undersigned, but Plaintiff has submitted absolutely
no evidence of alleged bias by the undersigned against Plaintiff.
Third, as set forth in the October 28, 2011, Opinion and Order, the law is clearly established
that Defendants were entitled to judicial immunity for the actions that served as the basis for
Plaintiff’s Complaint. As such, the Court concludes that a reasonable, objective person would not
question: (a) the Court’s dismissal of Plaintiff’s cause of action, or (b) the undersigned’s impartiality
in this matter.
Accordingly, for the reasons stated above, the Court does not find that there was a palpable
defect upon which the Court or the parties were misled. In addition, the Court finds that Plaintiff
has offered no evidence to support his theory that this Court issued a ruling based on any improper
or extrinsic purpose - or that the Court’s ruling on the Defendant’s motion to dismiss was based on
anything other than an impartial application of clearly established law. In other words, none of the
arguments or evidence proffered by Plaintiff would result in a different disposition of his cause of

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action. Therefore, the Court denies Plaintiff’s Motion for Reconsideration, including the motion to
disqualify the undersigned set forth therein.

IV. CONCLUSION
Accordingly, and for the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s
Motion for Reconsideration (Docket #16), including the motion to disqualify the undersigned set
forth therein, is DENIED in its entirety. Therefore, this matter is now closed in this Court.
IT IS SO ORDERED.
S/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
Dated: November 15, 2011
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of this Order was served upon the attorneys of record
by electronic or U.S. mail on November 15, 2011.

S/Marie E. Verlinde
Case Manager
[phone]

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