Mauney v. Obama et al

Filing 15

ORDER denying 12 Motion for Recusal.. Signed by Chief Judge Robert J. Conrad, Jr on 2/2/12. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-215
FRED WOODROW MAUNEY, JR.,
Plaintiff,
vs.
CRICKET/BOJANGLES COLISEUM,
CHARLOTTE REGIONAL VISITOR’S
AUTHORITY, EX-POLICE CHIEF
DARREL STEPHENS, OFFICER DOES
1 THRU 20, JOHN DOE SECURITY
OFFICER, PATRICK MCCRORY,
ANTHONY FOXX, JOHN LASSITER,
EDWIN PEACOCK, II, PATSY KINSEY,
JAMES E. MITCHELL, JR., WARREN
TURNER, MICHAEL, BARNES, NANCY
CARTER, ANDY DULIN, and
WARREN COOKSEY,
Defendants.

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ORDER

THIS MATTER comes before the Court upon Plaintiff’s Motion and Demand for
Recusal (“Motion”), (Doc. No. 12).
I.

Background
Plaintiff Fred Woodrow Mauney, Jr. (“Plaintiff”) filed a complaint against Defendants

(“Complaint”), (Doc. No. 1), and a Motion to Proceed in Forma Pauperis, (Doc. No. 2), on May
2, 2011. On May 27, 2011, Plaintiff filed an Amended Complaint, (Doc. No. 4). The Court
granted Plaintiff’s Motion to Proceed in Forma Pauperis, (Doc. No. 2), and stayed service of
process pending a frivolity review by the Court, (Doc. No. 5). On November 29, 2011, the Court
issued an Order, (Doc. No. 6), dismissing Plaintiff’s suits against Defendants Barack Obama,
Campaign for Change, David Plouffe, Fox Charlotte, Bahakel Communications Ltd., and the

Charlotte-Mecklenburg Police Department as frivolous and ordering Plaintiff to amend his
Complaint with more particularized allegations within fourteen (14) days of entry of the Order.
Since the Order was issued, the court has granted Plaintiff’s three Motions for Extension of
Time, (Doc. Nos. 7; 9; 11). Plaintiff filed a Motion and Demand for Recusal, (Doc. No. 12), on
January 20, 2012.
II.

ANALYSIS
Plaintiff’s Motion demands recusal of Chief Judge Robert J. Conrad, Jr. and Magistrate

Judge David C. Keesler (“Judge Keesler”) pursuant to 28 U.S.C. § 144, 28 U.S.C. § 455, and
Judicial Canons 1, 2, and 3. Although Plaintiff names Judge Keesler at the start of his Motion,
the rest of the Motion is devoid of any references to Judge Keesler. Plaintiff’s Motion is,
therefore, DENIED as to Judge Keesler.
The remainder of this Order pertains to Plaintiff’s allegations against this Court. 28
U.S.C. § 144 addresses judicial bias and prejudice. It allows a party to file an affidavit stating
that the judge that is hearing the matter has a personal bias or prejudice against the party. 28
U.S.C. § 144. The affidavit must state facts and reasons for the party’s belief that bias or
prejudice exists and must be filed at least 10 days before the beginning of the term at which the
proceeding is to be heard. Id. The affidavit must be accompanied by a certificate stating that the
affidavit was made in good faith. Id.
First, Plaintiff failed to file the required affidavit and certificate. Second, Plaintiff states
in his Motion that “Plaintiff believes there is bias or prejudice of this Judge and that Plaintiff’s
name is being slandered” without supporting his claim with any facts or reasons for such belief.
(Doc. No. 12 at 3). Thus, Plaintiff has failed to satisfy the requirements of 28 U.S.C. § 144.
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28 U.S.C.§ 455 addresses disqualifications of judges. It states that any judge of the
United States must disqualify himself in any proceeding in which his impartiality might be
reasonably questioned. 28 U.S.C. § 455(a). It goes on to say that a judge should disqualify
himself where he has a personal bias or prejudice concerning a party. Id. at § 455(b)(1). A
federal judge is obliged to recuse himself if a person with knowledge of the relevant facts might
reasonably question his impartiality. Id. at § 455(a). The test is an objective one: a judge must
disqualify himself whenever his “impartiality might be reasonably questioned.” United States v.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (citing In re Beard, 811 F.2d 818, 827 (4th Cir.
1987)). In other words, “disqualification is required if a reasonable factual basis exists for
doubting the judge’s impartiality. The inquiry is whether a reasonable person would have a
reasonable basis for questioning the judge’s impartiality, not whether the judge is in fact
impartial.” Id. A presiding judge is not, however, required to recuse himself simply because of
“unsupported, irrational, or highly tenuous speculation.” Cherry, 330 F.3d at 665 (citing United
States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)). Put simply, “the proper test to be
applied is whether another with knowledge of all of the circumstances might reasonably
questions the judge’s impartiality.” Cherry, 330 F.3d at 665 (citing Beard, 811 F.2d at 827).
Once again, despite Plaintiff’s claim of “bias or prejudice,” he has not alleged any factual basis
to support such a claim. Thus, this Court is not required to recuse itself based on Plaintiff’s
unsupported and highly tenuous speculation.
Plaintiff similarly offers no facts to support his claim that this Court has violated Judicial
Canons 1, 2, and 3. The Court finds that Plaintiff’s Motion is lacking in factual basis, and is,
therefore, DENIED.

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III.

CONCLUSION
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion and Demand for Recusal,

(Doc. No. 12), is DENIED.

Signed: February 2, 2012

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