PONDEXTER v. THE ALLEGHENY COUNTY et al

Filing 92

MEMORANDUM ORDER indicating that, for reasons more fully stated within, Plaintiff's Motion for Disqualification of Federal District Judge Nora Barry Fischer Pursuant to 28 U.S.C. § 455(a) 79 is denied, with prejudice; that the Telephonic Post Fact Discovery Status Conference is rescheduled for 5/14/12 at 2:00 P.M. The Court will address the parties' previously submitted agendas (Docket Nos. 88 , 90 ), at said conference. The conference will be by telephone and the Court's Clerk will initiate the call. Signed by Judge Nora Barry Fischer on 5/9/12. (jg) Modified on 5/9/2012. (jg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
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EARL A. PONDEXTER,
Plaintiff,
v.
THE ALLEGHENY COUNTY HOUSING
AUTHORITY, JAMES T. ZAPF, FRANK
AGGAZIO, THOMAS MCPOYLE, and
JOHN JOYCE,
Defendants.

Civil Action No. 11-857
Judge Nora Barry Fischer

MEMORANDUM ORDER
Presently pending before this Court is Plaintiff’s Motion for Disqualification of Federal
District Judge Nora Barry Fischer Pursuant to 28 U.S.C. § 455(a) (Docket No. 79), in which
Plaintiff alleges that the undersigned District Judge has engaged in judicial misconduct,
exhibited bias against him and accepted bribes from Defendant Allegheny County Housing
Authority. The Motion has been fully briefed (Docket Nos. 83, 87, 89). Upon consideration of
the parties’ positions and for the following reasons, Plaintiff’s Motion (Docket No. 79) is denied
and the undersigned District Judge will not recuse because Plaintiff’s allegations of judicial
misconduct, bias and bribery are patently false and his Motion is wholly without merit.
I.

Factual and Procedural Background

Plaintiff filed a Complaint alleging Racial Discrimination and Racial Retaliation against
Defendants, on June 30, 2011. (Docket No. 4). Plaintiff argues that Defendants are “wantonly
and maliciously denying the Plaintiff a full, ‘Fair and Equal Opportunity’ to use and enjoy a
dwelling on the basis of racism and retaliation.” (Id. at ¶ 1). Plaintiff contends that on May 10,
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2010, he submitted a completed and signed Allegheny County Low Income Housing Application
to ACHA. (Id. at ¶ 23). Subsequent to said submission, Plaintiff asserts that he did not receive
any notification regarding his eligibility or ineligibility for low income housing assistance,
administered through ACHA. (Id. at ¶ 24). On May 28, 2010, Plaintiff filed a 903 HUD FHEO
discrimination complaint against ACHA with the local Fair Housing Partnership Program. (Id.
at ¶ 24). Plaintiff was informed that HUD FHEO would not review or investigate the HUD
FHEO 903 complaint and closed the case. (Id. at ¶ 25). Thereafter, on December 13, 2010,
Plaintiff filed a Pennsylvania Human Relations Act Complaint against ACHA. (Id. at ¶¶ 25-26).
On May 27, 2011, the Pennsylvania Human Relations Commission determined that insufficient
evidence existed to support Plaintiff’s PHRA Complaint, finding that Plaintiff never filed an
application for low income housing assistance. (Id. at ¶ 27). Said complaint was dismissed on
June 10, 2011. (Id.). Thereafter, Plaintiff filed the instant Complaint in this Court. (Id.).
During the August 10, 2011 Status Conference, Plaintiff submitted a motion to this Court,
requesting the recusal of the undersigned District Judge. (Docket No. 14).

However, Plaintiff

did not file said motion with the Clerk of Court and the Court informed Plaintiff that it would
take his motion under advisement, if he filed it with the Clerk of Court. (Id.). Plaintiff filed his
first Motion for Recusal and Disqualification of Federal District Judge Nora Barry Fischer
Pursuant to 28 U.S.C. 455(a) on August 23, 2011. (Docket No. 23). On September 30, 2011,
Plaintiff withdrew said motion. (Docket No. 39). Accordingly, that same day, the Court ordered
said motion withdrawn and deemed it moot. (Docket No. 40). Then, on April 13, 2012, Plaintiff
filed another Motion for Disqualification of Federal District Judge Nora Barry Fischer Pursuant
to 28 U.S.C. 455(a) (Docket No. 79), followed by Plaintiff’s Memorandum of Law Relative to
Plaintiff’s Allegations of Criminal Contempt Toward “Racist” Judge Nora Barry Fischer for Her

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Suppression of Evidence (Docket No. 83), which was filed on April 20, 2012. The Defendants
filed their Response to Plaintiff’s Motion on April 30, 2012. (Docket No. 87). Then, Plaintiff
filed his Response to Racist Judge Nora Barry Fischer’s Void Court Order Denying Plaintiff’s
Motion to Compel Disclosure & Production of Documents (Docket No.89), wherein he continues
to object to this Court’s further involvement in the above-captioned case.1 As the Motion
(Docket No. 79) has been fully briefed (Docket Nos. 83, 87, 89), it is ripe for disposition and the
Court now turns to a discussion detailing its decision.
II.

Legal Standard

Section 455(a) provides that “any justice, judge, or magistrate of the United States shall
disqualify [herself] in any proceeding in which [her] impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). The inquiry under section 455(a) is “whether the record,
viewed objectively, reasonably supports the appearance of prejudice or bias.” United States v.
Pungiatore, Crim A. No. 88-00003-09, Civ. A. No. 97-2972, 2003 WL 22657087, at *4 (E.D.Pa.
Oct. 24, 2003) (quoting SEC v. Antar, 71 F.3d 97, 101 (3d. Cir. 1995)). “‘Because a judge is
presumed to be impartial, the party seeking disqualification bears the substantial burden of
proving otherwise.’” Kuperman v. State of New Hampshire, Civ. A. No. 09-cv-66-JD, 2009 WL
1026413, at *1 (D.N.H. Apr. 15, 2009) (quoting United States v. Dehghani, 550 F.3d 716, 721
(8th Cir.2008)). The test is whether a reasonable person, knowing all of the circumstances of
record, would harbor doubts about the judge's impartiality. In re Prudential Ins. Co. of Am. Sales
Practice Litig., Agent Actions, 148 F.3d. 283, 343 (3d Cir. 1998).
It is “vital to the integrity of the system of justice that a judge not recuse [herself] on
unsupported, irrational or highly tenuous speculation,” McCann v. Commc'n. Design Corp., 775

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Given the pendency of the instant Motion for Disqualification (Docket No. 79), the Court postponed the May 4,
2012 Telephonic Post Fact Discovery Status Conference. (Docket No. 91).

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F.Supp. 1506, 1523 (D.Conn. 1991) (citing Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.
1987)), and the judge has an “affirmative duty not to recuse [herself] if the movant fails to
establish a reasonable doubt concerning [her] impartiality.” Grand Entertainment Group Ltd. v.
Arazy, 676 F.Supp.616, 619 (E.D.Pa. 1987).

Moreover, “the District Judge must remain

steadfast and undaunted in [her] commitment and obligation, under Article III of the Constitution
of the United States, to provide fair and impartial adjudication to all litigants who come before
the Court, including those seeking to obtain [her] ouster by repeated recusal motions replete with
ad hominem attacks.” United States v. Wecht, Crim. A. No. 06-0026, 2008 WL 2048350, at *1
(W.D.Pa. May 8, 2008). See United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994) (Party's own
public hostility to judge counseled against recusal “lest we encourage tactics designed to force
recusal”); see also, United States v. Eisenberg, 734 F.Supp. 1137, 1166 (D.N.J. 1990) (“The
weight of authority is against compelling recusal merely by attacking a judge.”). Furthermore,
“when proceedings are brought under 28 U.S.C. § 455(a), a judge need not accept as true the
motion's factual allegations, but may contradict them with facts drawn from [her] own personal
knowledge.” Massachusetts School of Law at Andover, Inc. v. American Bar Ass'n, 872 F.Supp.
1346, 1349 (E.D.Pa. 1994) (citing United States v. Balistrieri, 779 F.2d 1191, 1202 (7th Cir.
1985)).
III.

Overview of Arguments

Plaintiff accuses this Court of judicial misconduct, exhibiting bias against him and
accepting bribes from Defendant Allegheny County Housing Authority. In particular, Plaintiff
asserts that the undersigned District Judge engaged in judicial misconduct by obstructing justice
and abusing her discretion. (Docket No. 79 at 2-4). Plaintiff also contends that the undersigned
District Judge is biased because she is “racist,” “rogue,” “hostile” and “intemperate”. (Docket

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No. 89 at 3). Further, Plaintiff alleges that the undersigned District Judge accepted bribes from
Defendant Allegheny County Housing Authority in 2007 and also in connection with the abovecaptioned case. (Docket No. 79 at 6).
In response, Defendants argue that Plaintiff has violated 28 U.S.C. § 144 by filing two
disqualification motions in the above-captioned case. (Docket No. 87 at 2).

Moreover,

Defendants assert that Plaintiff has a history and practice of filing unsubstantiated recusal
motions and judicial misconduct complaints against the undersigned District Judge, as well as
other judges within the United States District Court for the Western District of Pennsylvania. (Id.
at 2-4). Defendant maintains that Plaintiff’s instant Motion for Disqualification (Docket No. 79)
continues his pattern of filing such motions, as it contains unsupported allegations of bias,
judicial misconduct and bribery. (Docket No. 87 at 2-5). In addition, Defense counsel denies
Plaintiff’s bribery accusations. (Id. at 5).
IV.

Discussion

Defendants’ argument that Plaintiff has violated 28 U.S.C. § 144 by filing two
disqualification motions in the above-captioned case (Docket No. 87 at 2) is misplaced for the
following reasons. Plaintiff withdrew (Docket No. 39) his first motion (Docket No. 23) and the
Court ordered said motion withdrawn and deemed it moot (Docket No. 40). Moreover, Plaintiff
seeks recusal pursuant to 28 U.S.C. § 455(a) and not 28 U.S.C. § 144. (See Docket No. 79).
However, Defendants correctly note that Plaintiff has a history and practice of filing
recusal motions and judicial misconduct complaints. (Docket No. 87 at 2-4). In 2005, Plaintiff
filed a Motion to Disqualify District Judge Conti. (Civ. A. No. 01-2161 (W.D.Pa.), Docket No.
101). Judge Conti denied Plaintiff’s motion, but she did recuse herself on other grounds. (Id. at
Docket Nos. 104, 105). Upon Judge Conti’s recusal, the case was reassigned to then District

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Judge Hardiman. (Civ. A. No. 04-536 (W.D.Pa.), Docket No. 40). In 2006, Plaintiff filed a
memorandum raising serious allegations against Judges Ambrose, Cercone, Hardiman, McVerry
and Conti. (Civ. A. No. 01-2161 (W.D.Pa.), Docket No. 112). Again in 2007, Plaintiff sought to
disqualify Judge Hardiman (Id. at Docket No. 67), however, that motion was dismissed as moot
because Judge Hardiman was elevated to the Third Circuit Court of Appeals (Id. at Docket No.
70). Then in 2010, Plaintiff wrote to the President Obama, United States Attorney General Eric
Holder, several United States Supreme Court Justices and several Senators raising serious
allegation against Judges Cercone, Hardiman, and the undersigned District Judge. (Docket Nos.
14-2, 14-3). No action was taken against the undersigned District Judge. In addition, Plaintiff’s
“complaint” against the undersigned District Judge, which he lodged in the Third Circuit Court
of Appeals, was dismissed.
The Court notes that Plaintiff’s instant Motion for Disqualification (Docket No. 79)
continues his pattern of filing such motions. Indeed, the allegations relating to bribery are
patently false and wholly lacking in merit. Defense counsel, as an officer of the Court, has
denied Plaintiff’s bribery accusations. (Docket No. 87 at 5). As a judge may contradict the
recusal motion’s allegations with facts drawn from her personal knowledge, the undersigned
District Judge denies the allegations of bribery and notes that she has never accepted any bribe in
this or any case, nor has she been offered a bribe in this or any case. See Massachusetts School of
Law at Andover, 872 F.Supp. at 1349.

Further, his allegations in the instant Motion are

unsubstantiated and are wholly lacking in merit. An objective review of the record2 does not
reasonably support any claim of judicial misconduct or bias. See Pungiatore, 2003 WL
22657087, at *4. Moreover, a reasonable person knowing all of the circumstances of record,

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Court reporters have been present at all hearings and all other proceedings.

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could not harbor doubts about the undersigned District Judge’s impartiality. See In re Prudential,
148 F.3d. at 343.
V.

Conclusion:

Based on the foregoing, Plaintiff has not proved that “the record, viewed objectively,
reasonably supports the appearance of prejudice or bias,” justifying recusal. See Pungiatore,
2003 WL 22657087, *4; see also, 28 U.S.C. § 455(a). Accordingly, the Court enters the
following Order on this 9th day of May, 2012:

ORDER
IT IS HEREBY ORDERED that Plaintiff’s Motion for Disqualification of Federal
District Judge Nora Barry Fischer Pursuant to 28 U.S.C. § 455(a) (Docket No. [79]) is DENIED,
with prejudice.
IT IS FURTHER ORDERED that the Telephonic Post Fact Discovery Status Conference
is rescheduled for Monday, May 14, 2012 at 2:00 P.M. The Court will address the parties’
previously submitted agendas (Docket Nos. [88], [90]), at said conference. The conference will
be by telephone and the Court’s Clerk will initiate the call.
Failure to comply with the Court’s Orders, policies and procedures can result in dismissal
for failure to prosecute.

s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated:

May 9, 2012

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cc/ecf:

All Counsel of Record
Earl A. Pondexter
P.O. Box 2311
Grant Street
Pittsburgh, PA 15230
(Regular & Certified Mail)

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