Bormuth v. Jackson, City of et al
ORDER denying 30 Plaintiff's Motion to Alter under Fed.R.Civ.Pro.Rule 59(e). Signed by District Judge Robert H. Cleland. (LWag)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
Case No. 12-11235
CITY OF JACKSON, et al.,
ORDER DENYING PLAINTIFF’S “MOTION TO ALTER
UNDER FED. R. CIV. PRO. RULE 59(e)”
Before the court is pro se Plaintiff Peter Bormuth’s “Motion to Alter Under Fed. R.
Civ. Pro. Rule 59(e),” which requests once again that this judge reconsider his prior
decision not to recuse himself from this action. See Fed. R. Civ. P. 54(b); E.D. Mich. LR
7.1(h). The court has already twice declined to take this action for reasons thoroughly
explained in the order denying Plaintiff’s original motion to recuse and the order denying
Plaintiff’s first motion for reconsideration. Plaintiff’s third attempt to present credible
evidence of this judge’s supposed bias or prejudice against him is no more successful,
and the court will deny this second motion for reconsideration.
Enough ink has been spilled on this matter already, so the court will not go into
extensive detail explaining why Plaintiff’s supposed “new evidence of prosecutorial
misconduct and new evidence of judicial prejudice” amounts to nothing more than a
rehashing of arguments previously rejected by the court. (Pl.’s Mot. Alter 3, Dkt. # 30.)
The alleged misstatements of fact and inappropriate arguments that Plaintiff attributes
to the city attorney who prosecuted him for trespassing lend no additional credence to
Plaintiff’s argument that this judge’s former position as a prosecutor makes it impossible
to fairly and impartially consider Plaintiff’s claim of malicious prosecution. General
allegations that a judge’s prior employment history predisposes him to rule in favor of
one party or another are little more than a baseless attack on the integrity of the
judiciary. Such averments certainly do not justify recusal. (See Order Den. Pl.’s Mot.
Recuse 3, May 31, 2012, Dkt. # 14.)
Even more baffling to the court is Plaintiff’s assertion that the steps it took to
accommodate Plaintiff’s preferences for the date of the scheduling conference
somehow evidence judicial bias.1 Contrary to Plaintiff’s “belie[f]s” about the “normal
pattern for scheduling in Federal Court,” (Pl.’s Mot. Alter 5), the court is not required to
consider an attorney’s or a pro se litigant’s outside obligations, personal or professional,
when making scheduling decisions, see E.D. Mich. LR 16.1(a) (“All pretrial conferences
shall be held as ordered by the Judges having jurisdiction of each case, with reasonable
notice of the time thereof given to counsel or any party without counsel.”). The court
will, of course, take into account reasonable scheduling requests, as it did in this case.
But Plaintiff is entirely unable to sustain a claim of judicial prejudice based on his
mistaken belief that he is entitled to dictate every scheduling decision based on which
On June 11, 2012, Plaintiff alerted the court as to his concerns regarding the
date originally set for the scheduling conference, June 21, 2012, which fell one day prior
to his criminal trial for the trespass charges related to this complaint. (Pl.’s Ex Parte
Req. 1, Dkt. # 22.) Plaintiff complained that he “was planning on using that day to
prepare for trial and to develop [his] cross examination strategy and to memorize certain
statutes and case law.” (Id.) The court took notice of Plaintiff’s concerns and
rescheduled the conference for June 19, 2012. Plaintiff again protested, this time
asserting that June 19 is a holy day in his religion. The court rescheduled the
conference, for a second time, to a date that fell after Plaintiff’s criminal trial.
days are convenient for him, especially when Plaintiff was successful in both of his
requests for rescheduling. The court’s treatment of Plaintiff has been consistent with its
approach to any other pro se complainant, and the fact that the management of this
litigation does not always align with Plaintiff’s misguided beliefs about how the Federal
Rules of Civil Procedure operate is not evidence of judicial bias. (See Order Den. Pl.’s
Mot. Amend/Correct 4, June 14, 2012, Dkt. # 23.)
Plaintiff is certainly correct that he is entitled to an impartial and disinterested
tribunal in this action. As the court has gone to great lengths to explain, however, this
does not mean that he is entitled to a judge who shares his personal or religious beliefs
or who has an employment history more to Plaintiff’s liking. In addition to a judge’s duty
to recuse himself in appropriate situations, a judge also has an affirmative duty not to
disqualify himself unnecessarily. See In re United States, 441 F.3d 44, 67 (1st Cir.
2006) (“The disqualification decision must reflect not only the need to secure public
confidence through proceedings that appear impartial, but also the need to prevent
parties from too easily obtaining the disqualification of a judge, thereby potentially
manipulating the system for strategic reasons, perhaps to obtain a judge more to their
liking.” (internal quotation marks and alteration omitted)). Accordingly,
IT IS ORDERED that Plaintiff’s “Motion to Alter Under Fed. R. Civ. Pro. Rule
59(e)” [Dkt. # 30] is DENIED.
s/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: July 9, 2012
I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, July 9, 2012, by electronic and/or ordinary mail.
Case Manager and Deputy Clerk
C:\Documents and Settings\wagner\Local Settings\Temp\notesFCBCEE\12-11235.BORMUTH.ReconsiderationRecusalOrder2.th.set.wpd
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