Bickerstaff v. Cuyahoga County et al

Filing 142

Memorandum Opinion and Order: For the reasons set forth in this order, the Court finds that the Magistrate Judge's Order denying Plaintiff's Motion for Voluntary Recusal is neither clearly erroneous or contrary to law. Plaintiff's Objection (Doc. No. 132 ) is overruled. Entered by Judge Pamela A. Barker on 4/15/2020. (L,Ja)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

Brenda V. Bickerstaff,

Case No. 1:18cv1142
Plaintiff,

-vsJUDGE PAMELA A. BARKER
Magistrate Judge Thomas Parker
Cuyahoga County, et al.,
Defendants.

MEMORANDUM OPINION AND
ORDER

Currently pending is Plaintiff Brenda V. Bickerstaff’s Objection to the Order of Magistrate
Judge Thomas Parker denying her Motion for Voluntary Recusal. (Doc. No. 132.) For the following
reasons, Plaintiff’s Objection is overruled.
I.

Relevant Procedural Background

On December 30, 2019, Plaintiff filed a Motion seeking the Voluntary Recusal of Magistrate
Judge Thomas Parker. (Doc. No. 113.) Therein, Plaintiff asserts that the Magistrate Judge “has and
continues to interfere” with her civil rights case by (1) engaging in ex parte conversations with the
named defendants; (2) filing a false allegation against her on the docket that Plaintiff displayed
inappropriate behavior towards members of the Clerk’s Office; (3) misleading the Plaintiff and
providing legal advice in his Report & Recommendation on Defendants’ Motion for Judgment on the
Pleadings; and (4) “manipulating the process against the plaintiff in this proceeding.” (Id.)

Defendants opposed Plaintiff’s Motion, noting that it was her third attempt to have a member
of the judiciary removed from the instant case. (Doc. No. 119.) Defendants assert that Plaintiff “has
failed to show why any reasonable objective person would believe that Magistrate Parker has not
been impartial to the matters of this case.” (Id.)
Plaintiff thereafter filed a Reply, in which she insisted that Magistrate Judge Parker had misled
her in his Report & Recommendation and failed to act in good faith throughout these proceedings.
(Doc. No. 120.)
On January 8, 2020, Magistrate Judge Parker issued an Order denying Plaintiff’s Motion.
(Doc. No. 121.) In relevant part, the Magistrate Judge found as follows:
Bickerstaff’s unsupported, conclusory allegations that the undersigned had ex parte
conversations with the defendants and gave her misleading legal advice do not provide
a basis for recusal. Here, the facts must be taken as they actually existed. Cheney, 541
U.S. at 914. The undersigned has never had a single ex parte communication with any
party or counsel. Moreover, the undersigned has never given Bickerstaff any legal
advice. [fn omitted]. The undersigned harbors no bias against Bickerstaff; and the
record in this case indicates that the court has made rulings for and against defendants’
positions, just as he has in respect to Bickerstaff’s arguments. Thus, because no basis
for recusal under Sections 144 or 455 exists, the undersigned has an obligation not to
recuse himself. Hoffa, 382 F.2d at 861; Baskes, 687 F.2d at 170; Fleming, 2019 U.S.
Dist. LEXIS 16544, at *4-5. Accordingly, Bickerstaff’s motion seeking voluntary
recusal (ECF Doc. 113) must be and hereby is DENIED.
(Id. at p. 3-4.)
Nearly six weeks later, on February 25, 2020, Plaintiff filed an Objection to the above Order.
(Doc. No. 132.) Therein, Plaintiff asserts that Magistrate Judge Parker “is refusing to take into
account his own behavior, which he fabricated information to the court and placed it on the docket.”
(Id.) She complains that he violated her due process rights by failing to conduct a hearing regarding
the accusation that she had behaved inappropriately towards Clerks’ Office staff. (Id.) Lastly,

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Plaintiff asserts that Magistrate Judge Parker is biased “and the evidence shows he is over zealous
towards the plaintiff.” (Id.)
II.

Legal Standard
“When a district judge reviews a magistrate judge's resolution of a non-dispositive matter, it

is not a de novo review, as it is in relation to a magistrate judge's recommendation as to a dispositive
matter.” Inhalation Plastics, Inc. v. Medex Cardio-Pulmonary, Inc., 2013 WL 992125 at *6 (S.D. Oh.
Mar. 13, 2013). See also United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). Rather, the
Magistrate Judge's decision is subject to review under Rule 72(a) and reversal when it “is clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). See Curtis, 237 F.3d at 603; Alvarado v.
Warden, Ohio State Penitentiary, 2018 WL 5783676 at * 1 (N.D. Ohio Nov. 5, 2018); Phillips v.
LaRose, 2019 WL 5729919 at * 2 (N.D. Ohio Nov. 5, 2019).
The clearly erroneous standard applies to factual findings, while legal conclusions are
reviewed under the contrary to law standard. E.E.O.C. v. Burlington N. & Santa Fe Ry. Co., 621
F.Supp.2d 603, 605 (W.D. Tenn. 2009). As the Sixth Circuit has explained, “‘[a] [factual] finding is
‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.’” Bisig v.
Time Warner Cable, Inc., 940 F.3d 205, 219 (6th Cir. 2019) (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)). “An order is ‘contrary to the law’ when it ‘fails to apply or misapplies
relevant statutes, case law, or rules of procedure.’” Id. (quoting United States v. Winsper, 2013 WL
5673617 at *1 (W.D. Ky. Oct. 17, 2013)).
When a petitioner objects to a magistrate judge’s resolution of a dispositive matter, the district
court reviews those objections de novo. Fed. R. Civ. P. 72(b)(3). Specifically, a district judge:
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must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to. The district judge may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
Id. “A party who files objections to a magistrate [judge]’s report in order to preserve the right to
appeal must be mindful of the purpose of such objections: to provide the district court ‘with the
opportunity to consider the specific contentions of the parties and to correct any errors immediately.’”
Jones v. Moore, 2006 WL 903199 at * 7 (N.D. Ohio April 7, 2006) (citing United States v. Walters,
638 F.2d 947, 949–50 (6th Cir. 1981)).
III.

Analysis
Here, Plaintiff objects to the Magistrate Judge’s denial of her Motion for Voluntary Recusal,

which is a non-dispositive matter. Thus, the Court considers Plaintiff’s objections under the clearly
erroneous or contrary to law standard, set forth above. For the following reasons, the Court finds that
the Magistrate Judge’s determination that recusal was not warranted is neither clearly erroneous or
contrary to law.
The Sixth Circuit has held that a judge is “presumed to be impartial, and the party seeking
disqualification ‘bears the substantial burden of proving otherwise.’” Scott v. Metropolitan Health
Corporation, 234 Fed. Appx. 341, 352 (6th Cir.2007). There are two federal statutes that govern
recusal. Under 28 U.S.C. § 144, a judge must recuse him or herself when a party files a “timely and
sufficient affidavit” alleging “personal bias or prejudice” and where there is a showing of actual bias.
Bias or prejudice means “a favorable or unfavorable disposition or opinion that is somehow wrongful
or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject
ought not possess ..., or because it is excessive in degree....” Liteky v. United States, 510 U.S. 540,

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550 (1994). See also Williams v. Anderson, 460 F.3d 789, 814 (6th Cir. 2006); United States v. Viola,
2015 WL 5084765 at * 2 (N.D. Ohio Aug. 27, 2015).
Title 28 U.S.C. § 455 requires a judge to “disqualify himself in any proceeding in which his
impartiality might reasonably be questioned,” or when “he has a personal bias or prejudice concerning
a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C.
§ 455(a), (b)(1). Section 455 is designed “‘to promote confidence in the judiciary by avoiding even
the appearance of impropriety whenever possible.’” Union Planters Bank v. L & J Dev. Co., Inc., 115
F.3d 378, 383 (6th Cir.1997) (quoting Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847,
865 (1988)). See also Scott, 234 Fed. Appx. at 354. Under § 455, the ultimate question is whether
“a reasonable, objective person, knowing all of the circumstances, would have questioned the judge's
impartiality.” United States v. Hartsel, 199 F.3d 812, 820 (6th Cir. 1999). Because the standard is
objective, the judge need not recuse him or herself based on the subjective view of a party. United
States v. Sammons, 918 F.2d 592, 599 (6th Cir.1990).
Under either statute, “[a] judge’s prejudice or bias may stem from either personal or
extrajudicial sources, or arise during the course of current or prior proceedings.” Burley v. Gagacki,
834 F.3d 606, 616 (6th Cir. 2016) (citing Liteky, 510 U.S. at 555). The fact that a litigant disagrees
with the legal rulings in the case, however, does not establish that the court's decisions are the product
of bias. Shepard v. United States, 2009 WL 3106554 at *2–3 (E.D. Mich. Sept.18, 2009). Moreover,
the subjective view of the party involved is not sufficient to support a recusal motion, no matter how
strongly that view may be held. Wheeler v. Southland Corp., 875 F.2d 1246, 1251 (6th Cir. 1989).
Further, “the Supreme Court held that ‘judicial rulings alone almost never constitute a valid basis for
a bias or partiality motion.’” Wilson v. Parker, 515 F.3d 682, 701 (6th Cir.2008) (citing Litecky, 510
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U.S. at 555). Recusal is only required when “the probability of actual bias on the part of the judge or
decisionmakers is too high to be constitutionally tolerable.” Rippo v. Baker, 137 S. Ct. 905, 907
(2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (2016)).
Here, Plaintiff has not shown that the Magistrate Judge’s denial of her Motion for Voluntary
Recusal was clearly erroneous or contrary to law. As the Magistrate Judge correctly noted, Plaintiff’s
allegations of ex parte conversations with the Defendants are unsupported and conclusory. Despite
numerous opportunities to do so, Plaintiff has offered no explanation of the basis for her belief that
any such ex parte communications occurred. Unfounded assertions and allegations based on nothing
more than personal belief are not sufficient to demonstrate that a judicial officer has engaged in
inappropriate ex parte communications. Nor are such unfounded assertions and allegations sufficient
to demonstrate bias or impartiality. The Magistrate Judge did not err in rejecting this basis for
Plaintiff’s Motion.
The Court also finds no merit in Plaintiff’s argument that the Magistrate Judge filed “false
allegations” about her on the docket that demonstrate a personal bias against her. Plaintiff appears to
be referring to an Order issued by the Magistrate Judge on March 29, 2019, which stated (in relevant
part) as follows:
The court has been made aware that Plaintiff Brenda Bickerstaff has had difficulty
using her CM/ECF account, and that Bickerstaff has not conducted herself
appropriately when contacting court staff to resolve her CM/ECF concerns. [fn 1]
While the court understands that there is a learning curve to filing documents through
CM/ECF, the privilege to file electronically through CM/ECF came with the
expectation that Bickerstaff would familiarize herself with the court’s rules and
procedures for using CM/ECF. Copies of the rules are available on the court’s website.
***. If plaintiff is unable to familiarize herself with the rules and procedures for using
the CM/ECF system, she may resume submitting paper filings.
Furthermore, the court will not tolerate any abuse of court staff or resources. If the
court receives any further reports of inappropriate conduct, the court will schedule a
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hearing to determine whether Bickerstaff’s CM/ECF filing privileges should be
withdrawn. If Bickerstaff wishes, she may file a response or request a hearing in regard
to the foregoing.
(Doc. No. 46.) 1
The Court finds that the above Order does not demonstrate either bias or impartiality. While
the Magistrate Judge cautioned Plaintiff against engaging in abusive conduct towards Clerk’s Office
staff, he did not restrict her access to CM/ECF or otherwise sanction her in any way. Indeed, the
docket reflects that the Magistrate Judge subsequently provided Plaintiff with the opportunity to come
to the Courthouse to meet with representatives of the Clerk’s Office to (1) answer her questions about
her CM/ECF password; (2) ask questions about using the Court's electronic filing system; and (3)
receive direct instruction or a tutorial concerning frequently encountered filing events. (Doc. No.
112.) Plaintiff did so on January 9, 2020 and successfully received one-on-one training from Clerk’s
Office Staff. (Doc. No. 128.) The docket reflects that the Magistrate Judge later denied Plaintiff’s
request for a hearing on this issue as moot, after Plaintiff failed to report any further significant
problems. (Doc. No. 129.)
Based on the above, the Court finds no evidence of bias or impartiality. Rather, and to the
contrary, the Magistrate Judge patiently worked with Plaintiff to resolve her concerns and ensure her
continued access to the Court’s electronic filing system. Plaintiff has failed to show that recusal on
this ground is warranted.

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In addition, in a footnote, the Magistrate Judge stated as follows: “Clerk’s office personnel have described Bickerstaff’s
phone calls as ‘argumentative,’ ‘rude,’ and ‘belligerent.’ Further, court staff have reported that Bickerstaff is recording
her phone conversations with them, and that Bickerstaff has accused the court staff of being ‘rude’ and ‘not helpful’ when
they do not walk her through filing documents in CM/ECF.” (Id. at fn. 1.)

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Finally, the Court finds that Plaintiff has not shown that recusal is necessary because the
Magistrate Judge misled her in his Report & Recommendation regarding Defendants’ Motion for
Judgment on the Pleadings. (Doc. No. 87.) Plaintiff has not sufficiently explained in what manner
she believes she was misled by the Magistrate Judges’ ruling and the Court cannot conceive of any.
Indeed, the Court notes that, in his Report & Recommendation, the Magistrate Judge recommended
that the Court sua sponte grant Plaintiff leave to amend her (1) malicious-prosecution claim against
Officers Goshen, Nuti, and McKenzie; (2) abuse of process claim against the Officer defendants; and
(3) Monell claims against Cleveland and Cuyahoga County. (Id.) This Court agreed with the
Magistrate Judge’s recommendation with respect to this issue and allowed Plaintiff to sua sponte
amend her Complaint. (Doc. No. 97 at p. 27.) In sum, Plaintiff fails to sufficiently explain how she
was misled by the Magistrate Judge’s R&R or otherwise demonstrate that his ruling reveals either
bias or prejudice.
Accordingly, and for all the reasons set forth above, the Court finds that the Magistrate
Judge’s Order denying her Motion for Voluntary Recusal is neither clearly erroneous or contrary to
law. Plaintiff’s Objection (Doc. No. 132) is overruled. 2

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Even if this Court were to conduct a de novo review of Plaintiff’s Objection, it would find, for all the reasons set forth
above, that Plaintiff has failed to demonstrate recusal is necessary or warranted under either 28 U.S.C. §§ 144 or 455.

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IV.

Conclusion
For all the reasons set forth above, the Court finds that the Magistrate Judge’s Order denying

Plaintiff’s Motion for Voluntary Recusal is neither clearly erroneous or contrary to law. Plaintiff’s
Objection (Doc. No. 132) is overruled.
IT IS SO ORDERED.

s/Pamela A. Barker
PAMELA A. BARKER
U. S. DISTRICT JUDGE

Date: April 15, 2020

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