Bormuth v. Jackson, City of et al

Filing 14

ORDER denying 3 Plaintiff's Motion to Recuse or Disqualify.. Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PETER BORMUTH,
Plaintiff,
v.

Case No. 12-11235

CITY OF JACKSON, et al.,
Defendants.
/
ORDER DENYING PLAINTIFF’S MOTION TO RECUSE OR DISQUALIFY
On March 23, 2012, Plaintiff Peter Bormuth, who is proceeding pro se, filed a
motion asking this judge to recuse or disqualify himself under 28 U.S.C. §§ 144 and
455(a).1 Defendant City of Jackson filed a response on April 9, 2012, and the court
determines a hearing to be unnecessary. See E.D. Mich. LR 7.1(f)(2). For the following
reasons, the court will deny the motion.
Plaintiff alleges that this judge should be disqualified or recuse because he is a
“professed Christian” and he was a “career prosecutor” before taking the bench. (Pl.’s
Mot. Recuse 3.) Plaintiff asserts that, because he is a professed animist and pagan and
his case involves claims of religious discrimination grounded in his “intelligent and
relentless criticism of Christianity,” (id.), this judge’s own religious beliefs prejudice him
against Plaintiff. Furthermore, Plaintiff asserts that this judge, as a former prosecutor,
1

Although Plaintiff throughout his motion cites subsection (b)(2), not subsection
(a), of 28 U.S.C. § 445, he actually relies upon the language of subsection (a). (See
Pl.’s Mot. Recuse 3, Dkt. # 3.) The court therefore construes Plaintiff’s motion as one
under 28 U.S.C. § 445(a). Cf. Haines v. Kerner, 404 U.S. 519, 520 (1972) (noting filings
by pro se parties are held to “less stringent standards than formal pleadings drafted by
lawyers”).

cannot be impartial regarding Plaintiff’s “retaliatory discrimination charge against a City
Prosecutor” who will be called as a witness in the case. (Id.) To support these charges,
Plaintiff references undocumented “[c]omments from lawyers who have argued before
the Judge” and who allegedly report: “he is extremely government-oriented”; “he heavily
favors prosecutors”; and “he is the most, or second most, conservative judge [in the
Eastern District of Michigan].” (Id. at 3-4.)
As a first matter, the motion presented to the court lacks the statutorily required
documentation to proceed under 28 U.S.C. § 144. That provision allows a litigant to
seek recusal by “fil[ing] 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.” 28 U.S.C. § 144. Plaintiff has filed no such affidavit, and so recusal
under § 144 is not warranted. Youn v. Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003);
United States v. Sammons, 918 F.2d 592, 598-99 (6th Cir. 1990).
28 U.S.C. § 445(a), on the other hand, requires a judge sua sponte to “disqualify
himself in any proceeding in which his impartiality might reasonably be questioned.” 28
U.S.C. § 445(a); see also Liteky v. United States, 510 U.S. 540, 548 (1994). In wellestablished case law of the Sixth Circuit, recusal is mandated on this basis “if a
reasonable, objective person, knowing all the circumstances, would have questioned
the judge’s impartiality.” Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990).
“The standard is an objective one; hence, the judge need not recuse himself based on
the ‘subjective view of a party’ no matter how strongly that view is held.” Sammons, 918
F.2d at 599 (quoting Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988)).

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Plaintiff has not alleged sufficient facts that would lead a reasonable, objective
person to question this judge’s impartiality. Rather, Plaintiff points to a few biographical
tidbits—religion—and professional background—former employment—as found in online publications about the federal judiciary. Neither attribute is unusual amongst the
judges of this bench (as far as the undersigned knows, every one of his colleagues in
the Eastern District of Michigan came to the bench with some variety of religious
background). Plaintiff then draws the conclusion that a judge’s religious or professional
background inevitably constitutes the kind of inherent bias that serves as an improper
influence in adjudicating cases. If Plaintiff’s argument were valid, no judge who had
previously been a criminal prosecutor or criminal defense attorney could properly sit on
criminal cases; no judge who had handled personal injury or products liability cases,
either for plaintiffs or defendants, could preside over similar civil cases. And, the court
imagines, no appellate judge who had once been a trial court judge could properly sit in
review of trial court decisions.
The only “evidence” Plaintiff presents to support his argument comprises what he
says are remarks attributed to unidentified individuals that he alleges have appeared
before this judge in the past. Even assuming that these comments were made as
represented, they amount to no more than “conclusions, rumors, beliefs, and opinions”
that cannot justify recusal. Gen. Aviation, Inc. v. Cessna Aircraft Co., 915 F.2d 1038,
1043 (6th Cir. 1990) (alteration and internal quotation marks omitted). The court sees
no reason for disqualification from the instant proceedings. Cf. Youn, 324 F.3d at 42223 (holding accusations of racism are not grounds for recusal). Even when considering

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the interesting opinion poll Plaintiff offered,2 the court does not believe any realistic
semblance of judicial bias has been presented. Plaintiff, in his complaint, speaks of
how he learned the “importance of taking the inner world of the imagination seriously.”
(Compl. 2, Dkt. # 1.) Plaintiff’s imagination, the court observes, is in this instance
overwrought.
Finally, the court reminds Plaintiff that he has filed a jury demand in this case.
This means that while the undersigned judge will evaluate legal issues, any required
determination relative to the credibility of Plaintiff’s version of the facts—or his view of
the world, if it comes to that—will be made by the people Plaintiff interacts with on a
day-to-day basis: his fellow citizens. Accordingly,
IT IS ORDERED that Plaintiff’s motion to recuse or disqualify [Dkt. #3] is
DENIED.

s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: May 31, 2012

2

Plaintiff sought to test the validity of his arguments for recusal by conducting a
poll at his “local watering hole,” where he interviewed “a tile layer, a truck driver, a
bookkeeper, and a bartender.” (Pl.’s Mot. Recusal 4.) After hearing Plaintiff’s tale, they
each opined that there was “no chance” a person with the undersigned judge’s
background could provide “a fair and impartial [trial].” (Id.) An interview of friendly
acquaintances who hear only one side of a contentious story told directly by one of the
interested parties, although an inventive and no doubt entertaining effort, seems very
unlikely to be a prize-winning proof of the objective-person standard identified in Liteky
and Hughes.
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I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, May 31, 2012, by electronic and/or ordinary mail.
s/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

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