Payne v. University of Southern Mississippi et al
Filing
102
ORDER denying Plaintiff's 101 Motion for Recusal. Signed by District Judge Keith Starrett on August 1, 2013 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DR. THOMAS PAYNE
V.
PLAINTIFF
CIVIL ACTION NO. 1:12cv41-KS-MTP
THE UNIVERSITY OF SOUTHERN
MISSISSIPPI, DR. MARTHA SAUNDERS,
Individually and Officially, DR. LISA NORED,
Individually and Officially, DR. ROBERT LYMAN,
Individually and Officially, DR. JOE WHITEHEAD,
Individually and Officially, DR. DALE LEDFORD,
Individually and Officially and DR. REX GANDY
Individually and Officially
DEFENDANTS
ORDER DENYING MOTION TO RECUSE
This matter is before the Court on the Plaintiff Dr. Thomas Payne’s Motion to
Recuse [101]. For the reasons stated below, the Court finds that the motion should be
denied.
Plaintiff’s Complaint [1-2] asserts several federal and state law claims in relation
to his employment as a faculty member of the University of Southern Mississippi
(“USM”). Plaintiff contends that Defendants’ wrongful conduct began in 2009 and that
his complaints “evolved out of his religious beliefs and his desire not to have those
beliefs and his religion used against him.” (Compl. [1-2] at ¶ 9.) It appears that the
Plaintiff was employed as a professor in USM’s Criminal Justice Department at its Gulf
Coast campus at all times relevant to the Complaint. (See Compl. [1-2] at pp. 2, 3, 5,
7.)
Plaintiff’s request for recusal is made pursuant to Title 28 U.S.C. § 455(a).
Plaintiff contends the impartiality of the undersigned (hereinafter referred to in the third
person as “Judge Starrett”) might reasonably be questioned because the “District Judge
has been an Adjunct faculty member within The University of Southern Mississippi and
the very Criminal Justice Department that is the focal point of this litigation.” (Mot. to
Recuse [101] at ¶ 5.) In support of recusal, the Plaintiff asserts that Dr. Lisa Nored (one
of the Defendants) stated at deposition that she had been Judge Starrett’s supervisor at
USM. Plaintiff also relies on a printout from USM’s Department of Administration of
Justice website (last modified on September 6, 2006), listing Judge Starrett as an
Adjunct Instructor. Dr. Nored’s deposition transcript indicates that the Criminal Justice
Department “used to be called the Department of Administration of Justice” and that Dr.
Nored was the interim chair of the Department in the fall of 2006. (Doc. No. [101-1 at
ECF pp. 3, 6].) Further, Dr. Nored answered, “I guess”, in response to the following
question from Plaintiff’s counsel: “So technically at least you were his [Judge Starrett’s]
supervisor?” (Doc. No. [101-1 at ECF p. 7].)
Section 455 provides in pertinent part that “[a]ny justice, judge, or magistrate
judge of the United States shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The purpose of this
provision is to avoid even the appearance of impropriety in the judiciary. See Liljeberg
v. Health Servs. Acquisition Corp., 486 U.S. 847, 860, 108 S. Ct. 2194, 100 L. Ed. 2d
855 (1988). Nonetheless, a court should be cautious in reviewing a recusal motion
since “putting disqualification in the hands of a party, whose real fear may be that the
judge will apply rather than disregard the law, could introduce a bias into adjudication.”
Sensley v. Albritton, 385 F.3d 591, 599 (5th Cir. 2004) (citing In re Mason, 916 F.2d
384, 385-86 (7th Cir. 1990)). Section 455(a) has been interpreted “to require recusal if
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a reasonable person, knowing all of the facts, would harbor doubts concerning the
judge’s impartiality.” Id. The reasonable person is presumed to be “well-informed,
thoughtful and objective,” as opposed to “hypersensitive, cynical, and suspicious . . . .”
Id. A motion seeking recusal under § 455 is entrusted “to the sound discretion of the
district judge.’” Id. at 598.
The following facts are pertinent to the issue of recusal before the Court. Judge
Starrett was hired as an adjunct instructor by Dr. Donald Cabana in September, 2005.
Prior to that time, Judge Starrett had no direct contact with anyone at USM regarding
potential employment. Judge Starrett taught one course at USM’s Hattiesburg campus
during the following semesters: (1) September, 2005 – December, 2005; (2) August,
2006 – December, 2006; and (3) January, 2007 – May, 2007. Judge Starrett was paid
$1,500.00 per course/semester. Judge Starrett spoke with Dr. Nored on one occasion
about the possibility of him teaching a course in the fall of 2008. Judge Starrett declined
this teaching opportunity. At no time did Judge Starrett serve in any administrative role
in the academic department made the subject of this lawsuit. Aside from Judge Starrett
presiding over other lawsuits where USM, Dr. Saunders and Dr. Lyman have been
named as parties, he has not had any personal or professional dealings with any of the
Defendants since he last taught at USM in 2007.1
1
Dr. Nored was one of several individuals proposed by Forrest County to serve as
an independent monitor in a lawsuit challenging conditions of confinement at the Forrest
County Juvenile Detention Center. (See Doc. No. [8] in Case No. 2:11cv91.) On March
6, 2012, Dr. Nored and others seeking appointment appeared before Judge Starrett for
a hearing on the selection of the independent monitor. After listening to arguments of
counsel and hearing from the proposed candidates, Judge Starrett appointed Ann
Nelson–who is not associated with USM–as the independent monitor. (See Order [14]
in Case No. 2:11cv91.)
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No reasonable person “knowing all of the facts”2 regarding Judge Starrett’s prior,
limited teaching engagement at USM would question his impartiality in this action. Cf.
Lunde v. Helms, 29 F.3d 367, 370-71 (8th Cir. 1994) (affirming denial of motion to
recuse where the University of Iowa was a party and the trial judge graduated from the
University Law School, made financial contributions to the Iowa Law School Foundation
and presented educational programs at the University); Wu v. Thomas, 996 F.2d 271,
275 (11th Cir. 1993) (ruling that the trial judge’s status as an adjunct professor at the
University of Alabama and past financial contributions to the University did not require
recusal in a suit brought against the University and numerous University officials); Levitt
v. Univ. of Tex. at El Paso, 847 F.2d 221, 225-26 (5th Cir. 1988) (finding the school ties
of the trial judge and his wife insufficient to warrant recusal); Bernofsky v. Adm’rs of the
Tulane Educ. Fund, No. Civ.A.98-1792, 2000 WL 703798, at *1-2 (E.D. La. May 30,
2000) (denying motion to recuse based on the district judge agreeing to teach a
summer course at Tulane Law School in exchange for a stipend of $5,500), aff’d, 253
F.3d 700 (5th Cir. 2001).
IT IS THEREFORE ORDERED AND ADJUDGED that Plaintiff’s Motion to
Recuse [101] is denied.
SO ORDERED AND ADJUDGED this the 1st day of August, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
2
Sensley, 385 F.3d at 599.
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