Newman v. Ohio Civil Rights Commission et al

Filing 12

ENTRY AND ORDER DENYING MOTION FOR RECUSAL AND GRANTING MOTION TO CONSOLIDATE CASE NOS. 3:18-CV-88 AND 3:18-CV-89- For the reasons above, the Court DENIES Plaintiffs Motion for Recusal (Doc. 9 , Case No. 3:18-cv-88; Doc. 11 , Case No. 3:18-cv-89) a nd GRANTS Plaintiffs Motion to Consolidate (Doc. 9 , Case No. 3:18-cv-88; Doc. 11 , Case No. 3:18-cv-89). Going forward, all filings are to be made in Case No. 3:18-cv-88. Case No. 3:18-cv-89 is hereby TERMINATED. Signed by Judge Thomas M. Rose on 9/28/18. (kma) Modified on 9/28/2018 (jmb).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
PETER NEWMAN,

:
Case No. 3:18-cv-88
:
Case No. 3:18-cv-89
Plaintiff,
:
:
Judge Thomas M. Rose
v.
:
:
OHIO CIVIL RIGHTS COMMISSION,
:
et al.,
:
:
Defendants.
:
______________________________________________________________________________
ENTRY AND ORDER DENYING MOTION FOR RECUSAL AND GRANTING
MOTION TO CONSOLIDATE CASE NOS. 3:18-CV-88 AND 3:18-CV-89
______________________________________________________________________________
This case is before the Court on Plaintiff Peter Newman’s Motion for Recusal, to
Consolidate His Two Cases, and to Transfer the Consolidated Cases to the Magistrate Judge (Doc.
9). Plaintiff’s Motion contains two separate requests, namely that the undersigned recuse himself
from this case pursuant to 28 U.S.C. § 455(a) and that the Court consolidate this case with another
case (Case No. 3:18-cv-89) that Plaintiff brought against the same Defendants. Plaintiff filed an
identical Motion (Doc. 11) in Case No. 3:18-cv-89. The Court considers both Motions here.
Defendants Ohio Civil Rights Commission, Leonard J. Hubert, Lori Barreras, Juan
Cespedes, William Patmon III, Madu Singh, G. Michael Payton, Stephanie Bostos-Demers,
Desmon Martin, Vera Boggs, Duffy Jamieson, Kathy Haley Ross, and Stephan Smith [sic, Stefan
Schmidt] (“Defendants”) oppose recusal, but agree that consolidation of Plaintiff’s two cases
against Defendants would be proper.
As discussed below, Plaintiff has not shown evidence of any personal bias against him
derived from any extrajudicial source. As a result, the undersigned will not recuse himself from

either of Plaintiff’s cases against the Defendants. The Court will, however, consolidate Case Nos.
3:18-cv-88 and 3:18-cv-89 because they involve common questions of law and fact. Fed. R. Civ.
P. 42(a). Going forward, all filings should be made in Case No. 3:18-cv-88. Plaintiff’s Motions
(Doc. 9, Case No. 3:18-cv-88) (Doc. 11, Case No. 3:18-cv-89) are therefore DENIED IN PART
and GRANTED IN PART.
I.

MOTION FOR RECUSAL
Plaintiff argues that the undersigned Judge is biased against him based on rulings in a

related case, captioned Peter Newman v. University of Dayton, et al., Case No. 3:17-cv-179.
Specifically, Plaintiff points to three Orders: (1) the Court’s Order granting a motion to strike
Plaintiff’s memorandum in opposition to the defendants’ motion to dismiss, (2) the Court’s Order
denying Plaintiff’s motion for reconsideration of the Order granting the motion to strike, and (3)
the Court’s Order granting the defendants’ motion to dismiss. (Case No. 3:27-cv-179, Docs. 22,
28, 38.) None of these Orders, however, reveals any personal bias against Plaintiff.
Under 28 U.S.C. §455, a judge must recuse himself from a case “in which his impartiality
might reasonably be questioned.” 28 U.S.C. § 455(a). In addition, a judge must disqualify
himself “[w]here 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(b)(1).
The Sixth Circuit has held that the standard for recusal under section 455 is
“straightforward and well-established”:
A district judge is required to recuse himself “‘only if a reasonable person with
knowledge of all the facts would conclude that the judge's impartiality might
reasonably be questioned.’” United States v. Story, 716 F.2d 1088, 1091 (6th
Cir.1983) (quoting Trotter v. International Longshoremen's & Warehousemen's
Union, 704 F.2d 1141, 1144 (9th Cir.1983)). This standard is objective and is not
2

based “on the subjective view of a party.” Browning v. Foltz, 837 F.2d 276, 279
(6th Cir.1988), cert. denied, 488 U.S. 1018, 109 S.Ct. 816, 102 L.Ed.2d 805 (1989).
Prejudice or bias must be personal, or extrajudicial, in order to justify recusal. Id.
at 279. “Personal” bias is prejudice that emanates from some source other than
participation in the proceedings or prior contact with related cases. Demjanjuk v.
Petrovsky, 776 F.2d 571, 577 (6th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct.
1198, 89 L.Ed.2d 312 (1986). Personal bias arises out of the judge’s background
and associations. The critical test is whether the alleged bias “stem[s] from an
extrajudicial source and result[s] 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, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1965).
Wheeler v. Southland Corp., 875 F.2d 1246, 1251–52 (6th Cir. 1989)
Plaintiff fails to allege any personal prejudice or bias justifying recusal. His Motion is
based exclusively on the undersigned’s judicial conduct in presiding over Plaintiff’s prior lawsuit.
Without any allegation of an extrajudicial source of bias, the Motion for Recusal is deficient and
must be denied. See, e.g., United States v. Jamieson, 427 F.3d 394, 405 (6th Cir.2005); Rhodes
v. McDannel, 945 F.2d 117, 120 (6th Cir. 1991).
II.

MOTION TO CONSOLIDATE
Plaintiff asks the Court to consolidate this case, Case No. 3:18-cv-88, with his related case

against the same Defendants, Case No. 3:18-cv-89. Defendants do not object to consolidation of
the cases. Under Fed. R. Civ. P. 42, the Court may consolidate actions that involve a common
question of law or fact. In both cases, Plaintiff alleges that the Ohio Civil Rights Commission
and individual Defendants violated his constitutional rights by mishandling his claims against the
University of Dayton. The common issues of law and fact underlying Plaintiff’s claims in the
lawsuits merits their consolidation under Fed. R. Civ. P. 42. The Court therefore grants Plaintiff’s
Motion to Consolidate.

3

III.

CONCLUSION
For the reasons above, the Court DENIES Plaintiff’s Motion for Recusal (Doc. 9, Case

No. 3:18-cv-88; Doc. 11, Case No. 3:18-cv-89) and GRANTS Plaintiff’s Motion to Consolidate
(Doc. 9, Case No. 3:18-cv-88; Doc. 11, Case No. 3:18-cv-89). Going forward, all filings are to
be made in Case No. 3:18-cv-88. Case No. 3:18-cv-89 is hereby TERMINATED.
DONE and ORDERED in Dayton, Ohio, this Friday, September 28, 2018.
s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

4