SMALLS v. RIVIERA TOWERS CORPORATION et al

Filing 45

MEMORANDUM OPINION AND ORDER Denying 28 Motion for Recusal. Signed by Judge Renee Marie Bumb on 1/6/17. (js)

NOT FOR PUBLICATION

[Docket No. 28]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

PATRICIA SMALLS,
Plaintiff,

Civil No. 16-847 (RMB/KMW)
MEMORANDUM OPINION AND ORDER

v.
RIVIERA TOWERS CORPORATION,
et al.,
Defendants.

This matter comes before the Court upon the Motion to
Recuse by pro se Plaintiff Patricia Smalls [Docket No. 28],
seeking the recusal of this Court pursuant to 28 U.S.C. § 455
and Marshall v. Jerrico, Inc., 446 U.S. 238, 238 (1980).1

For

the reasons set forth below, the motion is DENIED.
Under 28 U.S.C. § 455,
(a) Any justice, judge, or magistrate judge of the
United States shall disqualify [herself] in any
proceeding in which [her] impartiality might
reasonably be questioned.
(b) [She] shall also disqualify [herself] in the
following circumstances:
(1) Where [she] has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding . . . .

1

The Court notes that the Supreme Court’s decision in
Marshall does not relate to the recusal or disqualification of
judges. Accordingly, the Court only addresses Plaintiff’s
motion under 28 U.S.C. § 455.
1

Beliefs or opinions that merit recusal must generally
involve an extrajudicial factor rather than “facts which the
judge has learned from [her] participation in the case.”

United

States v. Rosenberg, 806 F.2d 1169, 1173 (3d Cir. 1986); accord
United States v. Antar, 53 F.3d 568, 573 (3d Cir. 1995),
overruled on other grounds by Smith v. Berg, 247 F.3d 532, 538
(3d Cir. 2001) (citing Liteky v. United States, 510 U.S. 540,
555 (1994)).

If the alleged bias stems from facts obtained

during judicial proceedings, however, the Third Circuit has
instructed that the alleged bias “must be particularly strong in
order to merit recusal.”

Antar, 53 F.3d at 574.

In other

words,
[t]he court must reveal such a high degree of
favoritism or antagonism as to make fair judgment
impossible. Under § 455(a), if a reasonable man, were
he to know all the circumstances, would harbor doubts
about the judge’s impartiality under the applicable
standard, then the judge must recuse.
In re Prudential Ins. Co. Am. Sales Practice Litig. Agent
Actions, 148 F.3d 283, 343 (3d Cir. 1998) (internal citations
and quotations omitted).

Section 455(a) requires judicial

recusal “if a reasonable person, knowing all the circumstances,
would expect that the judge would have actual knowledge” of her
interest or bias in a case.

Liljeberg v. Health Servs.

Acquisition Corp., 486 U.S. 847, 860 (1988); accord In re
Kensington Int'l Ltd., 368 F.3d 289, 301 (3d Cir. 2004).

2

In

making this determination, the court must consider how the facts
would appear to a “well-informed, thoughtful and objective
observer, rather than the hypersensitive, cynical, and
suspicious person.”

United States v. Jordan, 49 F.3d 152, 156

(5th Cir. 1995); accord Clemens v. U.S. Dist. Court for Cent.
Dist. of California, 428 F.3d 1175, 1178 (9th Cir. 2005); Matter
of Mason, 916 F.2d 384, 386 (7th Cir. 1990).
“[B]eliefs or opinions which merit recusal must involve an
extrajudicial factor,” Selkridge v. United of Omaha Life Ins.
Co., 360 F.3d 155, 167 (3d Cir. 2004) (internal quotations and
citation omitted), and the Supreme Court has made it clear that
“judicial rulings alone almost never constitute a valid basis”
for recusal.

Liteky, 510 U.S. at 555.

Judicial decisions “can

only in the rarest circumstances evidence the degree of
favoritism or antagonism required . . . when no extrajudicial
source is involved.

Almost invariably, they are proper grounds

for appeal, not for recusal.”

United States v. Wecht, 484 F.3d

194, 218 (3d Cir. 2007) (quoting Liteky, 510 U.S. at 555).
Moreover, “opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair
judgment impossible.”

Liteky, 510 U.S. at 555.

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Finally, it should be noted that, where issues of recusal
arise, “a federal judge has a duty to sit where not disqualified
which is equally as strong as the duty to not sit where
disqualified.”

Laird v. Tatum, 409 U.S. 824, 837 (1972); see

also Clemens, 428 F.3d at 1179; Sensley v. Albritton, 385 F.3d
591, 598-99 (5th Cir. 2004); Nichols v. Alley, 71 F.3d 347, 351
(10th Cir. 1995).
Plaintiff claims that this Court must recuse itself because
it has “unjustifiably refused to provide due process and equal
protection to me before the court and has behaved in a manner
inconsistent with that which is needed for full, fair, impartial
hearings in front of a JURY TRIAL.”
No. 28] (emphasis in original).

Pl. Br. at 1-2 [Docket

Plaintiff also attaches an

affidavit from herself which purports to “detail[] unethical and
illegal conduct which gives Petitioner good reason to believe
the above Judge’s mind is closed to justice; that the judge has
a personal bias or prejudice against the Plaintiff which is of
such a nature, and of such intensity, that it would render the
judge unable to give me, the Plaintiff, the fair trial to which
every litigant is entitled.”

Id. at 2.

In the attached “AFFIDAVIT OF BIAS AND PREJUDICE”,
Plaintiff argues that recusal is necessary because “[a]fter
delaying my case for 6 months while I am homeless, Judge Bumb
restores my case to calendar admitting to violating my rights.”

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Pl. Aff. at 3 [Docket No. 28].

Plaintiff demands this Court’s

recusal, claiming that she “cannot have a fair jury trial as
guaranteed by U.S. Constitution if Judge Bumb who after 6 months
provided absolutely no proof that I have been legally evicted
does not retract her statements in DKT 2 and recuse herself from
my case.”

Id. at 4.

Plaintiff additionally claims that she has

been repeatedly discriminated against by various judges because
she is “black and a woman.”

Id.

Plaintiff continues:

In violation of 4th Amendment of U.S. Constitution,
Judge Bumb as well as the over 20 judges and law
enforcement who have known about this injustice not
only did nothing to help me get back my stolen co-op
with contents but conspired against my rights to
cover-up the indictable hate crimes committed against
me and deprive me of my stolen co-op, stolen
belongings and constitutional rights. . . . Judge Bumb
is trying to legalize an illegal eviction to allow
criminals [to] keep my stolen beloved co-op/home that
I still own with a mortgage, hinder prosecution of
these criminals and prevent me from having a fair jury
trial. The Court should know that I am rightful owner
of stolen co-op.
Id. at 9-10.
Plaintiff’s allegations of bias or prejudice in her motion
to recuse have no merit.

Upon the filing of Plaintiff’s

complaint, the Court issued an Order to Show Cause why her
claims should not be dismissed on the grounds of res judicata,
collateral estoppel, and immunity, noting that Plaintiff is
apparently attempting to re-litigate claims already adjudicated

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in this District [Docket No. 2].2

After reviewing two

submissions by Plaintiff in response to the Order to Show Cause
[Docket Nos. 3, 4], the Court determined that dismissal at this
stage was not appropriate and ordered the Clerk of the Court to
issue summons so that Plaintiff could effectuate service on the
Defendants [Docket No. 5].
Here, the record does not support a finding of an
extrajudicial factor causing impartiality or any degree of
favoritism or antagonism on the part of this Court, so as to
make fair judgment in this proceeding unlikely, let alone
impossible.

Indeed, the Court permitted Plaintiff’s case to

proceed in spite of its view that “this litigation appears
‘patently frivolous,’” and provided Plaintiff with guidance as
to the requirements of Federal Rule of Civil Procedure 11
[Docket No. 5].

Subsequently, several Defendants have filed

motions to dismiss Plaintiff’s complaint [Docket Nos. 24, 25,
27, 29, 34, 35, 36, 39, 40], which will be addressed in due
course by the Court.

The Court is unaware of any reason why it

would not or could not treat Plaintiff or any of the parties to

2

“[A] federal court may sua sponte dismiss a complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) when the
allegations within the complaint ‘are so attenuated and
unsubstantial as to be absolutely devoid of merit, . . . wholly
insubstantial, . . . obviously frivolous, . . . plainly
unsubstantial, . . . or no longer open to discussion.’” Itiowe
v. Trentonian, 620 F. App’x 65, 67 (3d Cir. 2015) (quoting
Hagans v. Lavine, 415 U.S. 528, 536–37 (1974)).
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this action in a fair and impartial manner.

Similarly, the

Court is not aware of any conflict of interest.

Finally, as

previously stated, Plaintiff’s allegations of bias or prejudice
are entirely baseless.

For these reasons, Plaintiff’s Motion to

Recuse will be denied.
ACCORDINGLY, IT IS HEREBY on this 6th day of January 2017,
ORDERED that Plaintiff’s Motion to Recuse [Docket No. 28]
is DENIED.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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