Gillispie v. Miami Township et al

Filing 65

DECISION AND ORDER ON MOTION TO RECUSE - Defendants Miami Township,Matthew Scott Moore, Tim Wilson, Thomas Angel, Marvin Scothorn, John DiPietro, and Stephen Gray Motion to Recuse(Doc. No. 49) is DENIED. Signed by Magistrate Judge Michael R Merz on 5/28/2014. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
ROGER DEAN GILLISPIE,
Plaintiff,

-

vs

:

Case No. 3:13-cv-416
District Judge Thomas M. Rose
Magistrate Judge Michael R. Merz

-

CITY OF MIAMI TOWNSHIP, et al.,

Defendants.

:

DECISION AND ORDER ON MOTION TO RECUSE

This case is before the Court on Motion to Recuse of Defendants Miami Township,
Matthew Scott Moore, Tim Wilson, Thomas Angel, Marvin Scothorn, John DiPietro, and
Stephen Gray (collectively the “Miami Township Defendants”)(Doc. No. 49). The Motion was
filed on May 1, 2014, pursuant to an Order setting that as a deadline for formal motions for
disqualification, entered in response to correspondence from counsel for the Miami Township
Defendants informally requesting that I “consider a voluntary recusal under 28 U.S.C. § 455.”
(Doc. No, 46, PageID 384.) No other parties have sought recusal and the Plaintiffs have filed a
Response in Opposition (Doc. No. 57).
Motions to recuse are addressed in the first instance to the judge sought to be
disqualified. United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986); In re Drexel Burnham

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Lambert, Inc., 861 F.2d 1307, 1312 (2nd Cir. 1988); MacNeil v. Americold Corp., 735 F. Supp.
32, 36 (D. Mass. 1990)(specifically applying rule to United States magistrate judges).
When this case was filed, it was randomly assigned, as are all civil cases filed at Dayton,
to both a district judge and a magistrate judge, in this case District Judge Thomas M. Rose and
Magistrate Judge Michael J. Newman. The notation of an assignment “does not constitute a
reference to the assigned Magistrate Judge for any purpose, but merely selects the Magistrate
Judge to whom referrals in the case, if any, will be made.”(See Dayton General Order 13-01 on
the Court’s website, www.ohsd.uscourts.gov.)
Shortly after the case was filed, the assignment was transferred to me (Doc. No. 5) and
then referred for pre-trial case management by Judge Rose (Doc. No. 6). S. D. Ohio Civ. R.
3.1(b) provides:
(b) Related Cases. An initiating party shall identify on the civil
cover sheet or other form provided by the Clerk any previously
filed case or cases in the District that the party knows or believes
to be related. After the initial filing of a case, any party may call to
the Court’s attention any related case(s) by filing a notice of
related case(s). For purposes of this Rule, civil cases may be
deemed related by the Court if they:
(1) Arise from the same or substantially identical transaction,
happening, or event; or
(2) Call for a determination of the same or substantially identical
questions of law or fact; or
(3) Would entail a substantial duplication of effort and expense by
the Court and the parties if heard by different Judges; or
(4) Seek relief that could result in a party’s being subject to
conflicting orders of this Court.

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S. D. Ohio Civ. R. 3.1(c) provides that the related cases rule “is intended to provide for the
orderly division of the business of the Court and does not grant any right to any litigant.”
Plaintiff did not comply with S. D. Ohio Civ. R. 3.1(b); the “related cases” section of the
civil cover sheet was left blank upon filing (Doc. No. 1-1, PageID 27). Nevertheless, it was
apparent to the Court upon filing that this case was related, within the intendment of S. D. Ohio
Civ. R. 3.1(b), to Gillispie v. Timmerman-Cooper, Case No. 3:09-cv-471 (the “Habeas Case”).
The Habeas Case was brought by Gillispie under 28 U.S.C. § 2254 to collaterally attack his
convictions for rape. This case arises from the same sequence of events which gave rise to the
Habeas Case, many of the same questions of fact and law will be involved here, having the case
heard by a different judge would entail “a substantial duplication of effort,” and this case
potentially involves conflicting orders under Heck v. Humphrey, 512 U.S. 477 (1994). Of
course, this case could not be entirely transferred to me based on its relation to the Habeas Case
because the parties have not unanimously consented to plenary magistrate judge jurisdiction
under 28 U.S.C. § 636(c), but the transfer of assignment and reference for at least pre-trial
management seemed to the Court to comport as much as possible with the related cases rule and
rationale.

Standard for Recusal

The Miami Township Defendants seek recusal under 28 U.S.C. § 455(a) which provides
“[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.”

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The standard applied in evaluating recusal motions is an objective one. "[W]hat matters
is not the reality of bias or prejudice, but its appearance." Liteky v. United States, 510 U.S. 540,
548 (1994). A federal judicial officer must recuse himself or herself where "a reasonable person
with knowledge of all the facts would conclude that the judge's impartiality might reasonably be
questioned. This standard is not based 'on the subjective view of a party,'" no matter how
strongly that subjective view is held. United States v. Nelson, 922 F.2d 311, 319 (6th Cir. 1990);
Hughes v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990); Wheeler v. Southland Corp., 875
F.2d 1246, 1251 (6th Cir. 1989); Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988). Review
is for abuse of discretion. Wheeler, 875 F.2d at 1251. As the moving defendants note, a judge’s
introspective estimate of his own ability to be impartial is not the standard. (Motion, Doc. No.
49, PageID 416, citing Roberts v. Bailar, 625 F.2d 125, 129 (6th Cir. 1980). The same case holds
that where the question is close, the judge must recuse himself. Id.
§ 455(a) requires disqualification in any proceeding in which a judge’s impartiality might
reasonably be questioned. “This statute embodies the principle that ‘to perform its high function
in the best way justice must satisfy the appearance of justice.’” Ligon v. City of New York (In re
Reassignment of Cases), 736 F.3d 119, 123 (2nd Cir. 2013), quoting In re Murchison, 349 U.S.
133, 136 (1955).
The moving defendants also recognize that a disqualifying prejudice or bias must
ordinarily be personal or extrajudicial. United States v. Sammons, 918 F.2d 592, 598 (6th Cir.
1990); Wheeler, 875 F.2d at 1250. That is, it "must stem from an extrajudicial source and result
in an opinion on the merits on some basis other than what the judge learned from his
participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also
Youn v. Track, Inc., 324 F.3d 409 (6th Cir. 2003), citing Grinnell, supra; Bradley v. Milliken, 620

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F.2d 1143, 1157 (6th Cir. 1980); Woodruff v. Tomlin, 593 F.2d 33, 44 (6th Cir. 1979). The
Supreme Court has held:

The fact that an opinion held by a judge derives from a source
outside judicial proceedings is not a necessary condition for ’bias
and prejudice’ recusal, since predispositions developed during the
course of a trial will sometimes (albeit rarely) suffice. Nor is it a
sufficient condition for ‘bias and prejudice’ recusal, since some
opinions acquired outside the context of judicial proceedings (for
example, the judge’s view of the law acquired in scholarly reading)
will not suffice. ... [J]udicial rulings alone almost never constitute
valid basis for a bias or partiality motion. See United States v.
Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 16 L. Ed. 2d
778 (1966). ... Second, 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 v. United States, 510 U.S. 540, 554-55 (1994); see also Alley v. Bell, 307 F.3d 380, 388
(6th Cir. 2002)(quoting the deep-seated favoritism or antagonism standard). The Liteky Court
went on to hold:

Not establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that are
within the bounds of what imperfect men and women, even after
having been confirmed as federal judges, sometimes display. A
judge’s ordinary efforts at courtroom administration — even a
stern and short-tempered judge’s ordinary efforts at courtroom
administration — remain immune.
510 U.S. at 555. In Liteky itself the Court approved as a common practice the retrial of cases on
remand by the same judge who heard them before appeal. Since the decision in Liteky, supra,
“federal courts have been uniform in holding that § 455(a) cannot be satisfied without proof of
extrajudicial bias, except in the most egregious cases.” Flamm, Judicial Disqualification 2d §
25.99, citing In re Antar, 71 F.3d 97 (3rd Cir. 1995). The Miami Township Defendants do not
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assert any extrajudicial bias and have not moved for disqualification under §455(b) which
requires recusal “[w]here [a judge] has a personal bias or prejudice concerning a party or
personal knowledge of disputed evidentiary facts concerning the proceeding;”
Judge Easterbrook has written regarding § 455(a):
Section 455(a) asks whether a reasonable person perceives a
significant risk that the judge will resolve the case on a basis other
than the merits. This is an objective inquiry. A reasonable
observer is unconcerned with trivial risks, which are endemic. If
they were enough to require disqualification we would have a
system of pre-emptory strikes and judge-shopping, which itself
would imperil the perceived ability of the judicial system to decide
cases without regard to persons. ... There are not enough political
eunuchs on the federal bench to resolve all cases with political
implications; anyway it would be weird to assign all political
cases to the naifs while concentrating antitrust and securities cases
in the hands of political sophisticates. ... Tenure of office, coupled
with the resolve that comes naturally to those with independent
standing in the community have led a 'political' judiciary in the
United States to be more assertive in securing legal rights against
the political branches than is the politically neutral, civil service
judiciary in continental Europe.
In re Mason, 916 F.2d 384, 385-87 (7th Cir. 1990).

Application of the Standard

The Miami Township Defendants concern is that I have predispositions about how this
case should be decided arising from my handling of and decisions in the Habeas Case. They
have cited a number of instances where they believe I expressed or evinced such a predisposition
in that case which merit consideration in the context in which each of those instances occurred.

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Gillispie v. Timmerman Cooper, 835 F. Supp. 2d 482 (S.D. Ohio 2011)(“Gillispie 1”), is
the final appealable decision in which I granted Roger Gillispie a conditional writ of habeas
corpus on the basis of a finding that his rights under Brady v. Maryland, 373 U.S. 83 (1963), had
been violated. As the Miami Township Defendants quite properly note, to reach that decision, I
had to conclude that the contrary decision of the Montgomery County Court of Appeals in State
v. Gillispie, 2009 Ohio 3640, 2009 Ohio App. LEXIS 3107 (2nd Dist. 2009), was an objectively
unreasonable application of Brady. The opinion in Gillispie 1 quotes at length from Judge
Froelich’s opinion and recites at some length the standard for deference in habeas corpus cases
where a state court has previously decided the same constitutional question (so-called AEDPA
deference).
My decision had nothing to do with any lack of respect for the legal acumen of the judges
who decided that case. In my opinion Jeffrey Froelich, James Brogan, and Mike Fain are among
the very best appellate judges in Ohio. Moreover, each of them has been a personal friend
throughout the more than thirty years all of us have been judges in Dayton.
While the burden to overcome AEDPA deference is difficult, I decided, purely in the
exercise of professional judgment, that it had been met here. The Miami Township Defendants
emphasize that they will be asking me in this case “to reverse his conclusion and determine that
no Brady violation occurred.” (Motion, Doc. No. 49, PageID 417.) Precisely how that question
will be presented in this case is unclear at this point in time. If presented on summary judgment,
it will be for Judge Rose, not me, to decide, since summary judgment motions are classified as
dispositive by statute. 28 U.S.C. § 636(b). Certainly the attorneys in this case are completely
different from those who appeared in the Habeas Case, and they may be more persuasive than
the habeas lawyers were. There may be new law applicable to the Brady question decided

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between December 2011 and whenever it is finally presented for decision here. Furthermore, the
Brady question is not likely to be the only dispositive question in the case; qualified immunity
issues, for example, played no part in the Habeas Case.
More fundamentally, it cannot be a disqualification for a judge to have previously taken a
position on a question from which he or she must be persuaded. So far as I am aware, Justices
Brennan and Marshall continued to sit on capital appeals to the Supreme Court long after each of
them announced he would never again vote to uphold a death sentence.
The Miami Township Defendants argue this case must be distinguished from
disqualification “decisions analyzing judicial-ruling-based partiality challenges by a party on the
heels of an adverse ruling or comments in a judicial proceeding. Quite differently, this case is
still in its infancy. . .” The distinction is unhelpful to the case for recusal. Justice Scalia noted in
Liteky that expressions of annoyance, impatience, even anger are not disqualifying.

Such

expressions are much more likely to be provoked by lawyers’ or litigants’ courtroom behavior.
But that does not logically imply that forty-page hopefully well-reasoned decision in a related
case displays “deep-seated favoritism.” The Miami Township Defendants certainly point to no
examples of favoritism to Plaintiff displayed in the six months this case has been pending.
The Miami Township Defendants are also troubled by the post-judgment decisions in the
Habeas Case1. The context of those decisions requires explanation. 999 out of 1000 habeas
corpus judgments of this Court attract no media attention.

Even capital cases where a

conditional writ is granted rarely garner more than a column inch in the print media. For reasons
unknown to me, this case attracted a great deal of media attention. The Court’s pretrial officer
who went to Gillispie’s place of incarceration to explain bond conditions and attach an electronic
1

They argue “The orders and opinions rendered by Magistrate Judge Merz following the issuance of the conditional
writ of habeas corpus further cast doubt on his ability to remain impartial in these proceedings.” (Motion, Doc. No.
49, PageID 418.)

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monitor reported that the electronic media were present, along with Gillispie’s family. A Google
search on Plaintiff’s name produces literally dozens of media stories published around the time
Gillispie 1 was decided. Coincident with the public attention was a good deal of official
attention. One of the moving Defendants actually emailed this Court’s Chief Pretrial Services
Officer on the evening of Gillispie’s release. The Warden immediately appealed the final
judgment and sought a stay so that Gillispie would remain in prison pending appeal (3:09-cv471, Doc. Nos. 65, 67). The Montgomery County Prosecutor, who had not been formally
involved in the Habeas Case, entered an appearance and sought to be heard on bond. Id. at Doc.
Nos. 71-73). Having had Gillispie evaluated by Pretrial Services, the Court ordered him released
on conditions to which all parties agreed. Id. at Doc. No. 73, PageID 4592. The Court also
granted a stay pending appeal, in part out of respect for the opinion of the Second District Court
of Appeals. Id. at PageID 4591. This was the status of the Habeas case in late December 2011.
On April 13, 2012, the Second District Court of Appeals handed down State v. Gillispie,
2012 Ohio 1656, 2012 Ohio App. LEXIS 1453 (Ohio App. 2nd Dist. Apr. 13, 2012), in which it
granted Gillispie a new trial. This Court had imposed bond conditions designed in part to protect
the State of Ohio’s interest in its judgment, but concluded, on Gillispie’s motion which the State
did not oppose, that “[u]nless the Ohio Supreme Court reinstates that judgment of conviction, the
State’s interest in the judgment will be completely extinguished.” (3:09-cv-471, Doc. No. 88,
PageID 4640). The Court therefore continued Gillispie on a conditional own recognizance
release on the general conditions imposed on all pretrial releases in this District. Id. at PageID
4641. On Motion of the County Prosecutor, the Court added the condition that Gillispie not
contact any of the victims. Id. at Doc. No. 90 and notation order granting.

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The Habeas Case continued in this status until the Ohio Supreme Court declined to
exercise jurisdiction over the State’s appeal from the Second District’s new trial order which
occurred on November 7, 2012. State v. Gillispie, 133 Ohio St. 3d 1467 (2012). Having been
notified of that decision, the Court determined that the State of Ohio no longer had any interest in
the prior judgment of conviction and dissolved the bond entirely. The Court also wrote:
It further appears to this Court that the action of the Ohio Supreme
Court renders both this Court’s final judgment and the appeal from
that judgment moot. The Respondent is accordingly ordered to
show cause not later than November 19, 2012, why this Court
should not dissolve its stay pending appeal and notify the Sixth
Circuit Court of Appeals that the appeal is moot.

(3:09-cv-471, Doc. No. 91, PageID 4647.)
The Miami Township Defendants write that what happened next is “The State, relying
upon this order, filed a Motion to Vacate the order issuing the writ and dismissed their merits
appeal.” (Motion, Doc. No. 49, PageID 410). Counsel for these Defendants do not disclose how
they know the State dismissed its merit appeal “relying” on the November 9, 2012, Order. On its
face, the Order merely asks the Attorney General to take a position on mootness.2 Instead of
doing that, the Attorney General dismissed the Warden’s merit appeal voluntarily, advising this
Court in a Response to the Show Cause Order (3:09-cv-471, Doc. No. 92, PageID 4653.)
The Miami Township Defendants question this Court’s characterization of the merits
appeal dismissal as “voluntary,” but that is how Assistant Attorney General Watson
characterized it in her Response: “As a result, Respondent has moved to voluntarily dismiss his
appeal to the Sixth Circuit court of Appeals from this Court’s order granting a writ of habeas

2

The Attorney General did not represent the State in its appeal to the Ohio Supreme Court from the Second
District’s new trial decision and may not have known, two days after it happened, of the Ohio Supreme Court’s
decision.

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corpus conditioned upon the state’s retrial of Gillispie.” Id. at PageID 4650. She did not say the
dismissal was a “result” of this Court’s show cause order, but rather of her conclusion that this
Court had lost jurisdiction to enforce the conditional writ. Id. Moreover, in granting the motion
to dismiss, the Sixth Circuit characterized the dismissal as voluntary. Gillispie v. Warden, Case
No. 11-4417 (6th Cir. Nov. 26, 2012)(unpublished; copy at 3:09-cv-471, Doc. No. 93.)
The Attorney General went beyond voluntarily dismissing the appeal and moved this
Court to vacate its merits decision under Fed. R. Civ. P. 60(b)(3:09-cv-471, Doc. No. 92, PageID
4650-53).

Having ordered additional briefing, the Court denied that Motion.

Gillispie v.

Timmerman-Cooper, 2012 U.S. Dist. LEXIS 180324 (S.D. Ohio Dec. 20, 2012). The State
appealed (3:09-cv-471, Doc. No. 101). The State then moved to stay the denial of the 60(b)
motion pending the appeal. Id. at Doc. No. 100.
The Court denied the stay in a reported decision, Gillispie v. Timmerman-Cooper, 2013
U.S. Dist. LEXIS 17998 (S. D. Ohio Feb. 11, 2013). The Miami Township Defendants quote
extensively from this decision as if it showed the extraordinary prohibited predispositions
adverted to in Liteky. At that point in time, the State had lost on the merits of Gillispie’s habeas
petition and lost on its Rule 60(b) motion. As the Court noted in its decision, it was attempting
in the motion to stay to get the benefit of having won the motion to vacate – removal of collateral
estoppel effect of the merits judgment on the pending retrial in Common Pleas – without having
won. Id. at *10-14. In denying the stay, this Court weighed the factors prescribed by the Sixth
Circuit for such motions. Id. at *4-5, citing Ohio, ex rel. Celebrezze v. Nuclear Regulatory
Comm’n., 812 F.2d 288 (6th Cir. 1987). The Sixth Circuit was also asked to stay the decision and
declined to do so, deciding in part that the warden was unlikely to prevail on the merits Gillispie
v. Warden, Case No. 13-3088 (Order of May 29, 2013)(unreported). In doing so, the court noted

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that “[a]s a general rule, a party who voluntarily foregoes an appeal of a judgment foregoes the
remedy of vacatur.” Id. , citing U.S. Bancorp Mortg Co. v. Bonner Mall P’ship, 513 U.S. 18, 25
(1994). While the Sixth Circuit has not yet rendered a final decision, its interim order vindicates
this Court’s denial of a stay. Thus if the order denying stay somehow showed “deep-seated
favoritism,” it also had a basis in law.

Plaintiff opposes the Motion to Recuse (Doc. No. 57) and the Miami Township
Defendants have filed a Reply in Support (Doc. No. 61). The cited case law requires detailed
discussion.
In United States v. Adams, 722 F.3d 788 (6th Cir. 2013), the court gave examples of
comments and orders in a related case which did not meet the Liteky standard:
Defendants argue that the district court was biased because of:
1) comments made by the judge about the "culture of
corruption" in Clay County at the sentencing hearing on a
related case of Kenneth Day, who ultimately testified
against Maricle at trial; 2) that in the judge's
Memorandum Opinion and Order on Maricle's bond
conditions, the court "found Mr. Day's testimony to be
credible" based on his appearance before the judge in
other cases; and 3) comments made by the court during a
bond revocation of one of Maricle's codefendants that the
court had a concern that "in many cases that have
originated in Clay County, the defendants coming from
Clay County don't seem to understand that once they're
under bond conditions of this Court that those are pretty
serious conditions."
Maricle Br. at 37-38 (citing R. 375 (Mot. to Disqualify) (Page ID
#1560-68) and R. 381 (Mot. to Disqualify) (Page ID #1752-53)).
These assertions do not show that the district court relied on an
extrajudicial source of bias, and defendants cannot otherwise meet
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the "extreme" bias or prejudice standard discussed in Liteky.
Defendants have not pointed to an extrajudicial source because "all
the information known by the judge came from his judicial
involvement with related cases." United States v. Jamieson, 427
F.3d 394, 405 (6th Cir. 2005); see United States v. Hartsel, 199
F.3d 812, 820-21 (6th Cir. 1999). Defendants have not met the
"extreme" bias or prejudice standard under Liteky because the
district court judge's statements amount to criticism and
disapproval of defendants and other coconspirators, not deepseated favoritism or antagonism. See Liteky, 510 U.S at 555.
Because we do not question the district court's impartiality, we
affirm the denial of defendants' motions to recuse and hold that the
district court judge did abuse his discretion in failing to recuse
himself.

722 F.3d at 837-38. The Miami Township Defendants do not respond to Plaintiff’s citation of
Adams. The Court finds that Adams supports denial of recusal here.
Johnson v. Mitchell, 585 F.3d 923 (6th Cir. 2009), also cited by Plaintiff, is a capital
habeas corpus case. Petitioner sought recusal of the assigned District Judge because of his
connections with others involved in the state court conviction. The Circuit Court wrote
[W]e have consistently held that a judge need not recuse himself
on the basis of prior contact with a party or a witness, as long as
the judge does not have a familial, financial, or similarly close
relationship with the party or witness and as long as the judge has
not received out-of-court information about the case at hand. See,
e.g., United States v. Dandy, 998 F.2d 1344, 1349-50 (6th Cir.
1993); United States v. Sammons, 918 F.2d 592, 598-99 (6th Cir.
1990).

585 F. 3d at 946. The Miami Township Defendants do not respond to Plaintiff’s citation of
Johnson.
Plaintiff cites published circuit authority holding that federal trial judges are frequently
called upon to reconsider prior rulings without recusing themselves (Response in Opposition,
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Doc. No. 57, PageID 498, citing Oen Yin-Choy v. Robinson, 858 F.2d 1400 (9th Cir. 1988), and
United States v. Howard, 218 F.3d 556 (6th Cir. 2000). The Ninth Circuit in Yin-Choy adopted
the position of the Sixth Circuit in Demjanjuk v. Petrovsky, 776 F.2d 571 (6th Cir. 1985), that a
judge who presides over an extradition proceeding is not disqualified from presiding at a
subsequent habeas proceeding. The Miami Township Defendants do not respond to Plaintiff’s
citations of Yin-Choy and Howard.
In Wheat v. Ohio, 23 Fed. Appx. 441, 2001 U.S. App. LEXIS 24423 (6th Cir. 2001), the
Sixth Circuit held Magistrate Judge Jack Sherman of this Court was not disqualified to preside
over plaintiff’s § 1983 civil rights action by having previously presided over his habeas corpus
action which involved the same state court conviction.

The Miami Township Defendants

distinguish Wheat by noting habeas relief was denied there but granted here. (Reply, Doc. No.
61, PageID 618.) The distinction cuts against their position because, as in this case, it was the
party who lost in the first proceeding who sought recusal in the second.3
Plaintiff cites four other decisions in which a judge was held not disqualified in a
subsequent 1983 action by his or her presiding over a prior habeas matter involving the same
conviction (Response in Opposition, Doc. No. 57, PageID 499, citing Weimer v. County of Kern,
2007 WL 14353 (E.D. Cal. Jan. 3, 2007); Hughes v. City of Albany, 33 F. Supp.2d 152 (N.D.N.Y.
1999), aff’d 189 F.3d 461, 1999 WL 709290, at *2 (2d. Cir. 1999); Ingram v. Unknown Deputy No.
1, 2013 WL 4713574 (D. Or. Aug. 26, 2013); and Henderson v. Zreliak, 2006 WL 3827478, at *1
(W.D. Wash. Dec. 28, 2006). The Miami Township Defendants distinguish these cases on the
grounds the recusal motions were not well developed or they were made by § 1983 plaintiffs who
had previously lost in habeas. The Court assumes those distinctions are well-taken. After all, most

3

Of course, the Miami Twp. Defendants were not parties to the Habeas Case and did not get a chance to be heard
there.

14

habeas petitioners do proceed pro se and have difficulty developing the record and most of them also
lose. If we put all these cases out of consideration, where is the opposing case law? In their
Response, Plaintiff’s challenged the Miami Township Defendants on this point: “Conspicuously
absent from the Motion is citation to any authority standing for the proposition that a judge
previously presiding over a habeas matter is precluded from later presiding over a related § 1983
case.” (Doc. No. 57, PageID 498.) Thus challenged the Miami Township Defendants still produced
no such authority in their Reply. There being no binding or persuasive authority precisely in point,
we are thrown back on more general principles, including those adumbrated in the published Sixth
Circuit authority cited by Plaintiff and not addressed by the moving Defendants. Under those general
principles, the Miami Township Defendants have not proven that I am disqualified in this case under
28 U.S.C. § 455(a).
When they initially raised the question, the moving Defendants asked that I “voluntarily”
recuse myself. Some judges treat recusal as a voluntary matter. In a multi-judge court it is usually
possible to trade cases with another judge so as not to impose a burden on a colleague by recusal, so
“where’s the harm” in removing oneself voluntarily from a case. Even where no trading of cases
occurs, a leisure-maximizing judge4 might recuse upon suggestion of a party without proof that the
statute has been satisfied. That has never been my perspective. A judge’s duty, as I conceive it, is to
decide the matters he or she is assigned unless disqualified as a matter of law. On that basis, the
Motion to Recuse is DENIED.

May 28, 2014.

s/ Michael R. Merz
United States Magistrate Judge

4

See Richard A. Posner, How Judges Think (Cambridge, 2000), p. 11.

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