N'JAI v. US ENVIRONMENTAL PROTECTION AGENCY et al

Filing 7

MEMORAND ORDER indicating that upon consideration of Plaintiff's Motion for Judge Nora Barry Fischer to Recuse Herself from This and Any Other Case Involving Plaintiff 4 and accompanying Brief 5 , it is hereby ordered that said Motion is denied, without prejudice. Signed by Judge Nora Barry Fischer on 9/25/13. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JACQUELYN B. N’JAI,

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Plaintiffs,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY, ANNIE HOLT, GARY BENTZ,
CONNIE BENTZ, and CAP LLP,

Civil Action No. 13-1212
Judge Nora Barry Fischer

Defendants.
MEMORANDUM ORDER
As evidenced by this Court’s Order permitting service (Docket No. [6]), and upon
consideration of the Plaintiff’s Motion for Judge Nora Barry Fischer to Recuse Herself from This
and Any Other Case Involving Plaintiff (Docket No. [4]) and accompanying Brief (Docket No.
[5]), said Motion IS DENIED, without prejudice.
I.

FACTUAL AND PROCEDURAL BACKGROUND
In this case, Plaintiff Jacquelyn N’Jai filed claims on August 22, 2013 for negligence and

for negligent infliction of emotional distress against Defendants the U.S. Environmental
Protection Agency (“EPA”), Annie Holt, Gary Bentz, Connie Bentz, and CAP LLP. (Docket No.
[1-1], at 2). These claims arise from allegations related to Plaintiff’s previous housing situation,
and harms that she claims to have suffered because of Defendants’ actions. Id. On September 4,
2013, Plaintiff filed the pending Motion and attached Affidavit, seeking recusal of the undersigned
Judge, along with a supporting Brief. (Docket Nos. [4], [5]).
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Plaintiff asserts that this Judge should recuse “on the basis of obvious impropriety,”
(Docket No. [4], ¶ 16), claiming that this Judge acted with bias towards her in previous cases by,
inter alia, issuing adverse rulings, treating Plaintiff in a hostile manner, and raising the pleading
standard for pro se litigants. (Docket No. [4], at 1–2, ¶¶ 1–12 (listing Plaintiff’s grounds for
seeking recusal)). Although Plaintiff does not explicitly express as much, the inference underlying
her Motion is that this Judge will act with bias towards her in this present case.
In her Motion, Plaintiff draws heavily on arguments she made in a prior case, N’Jai v.
Pittsburgh Board of Public Education, in which this Judge also denied a motion to recuse. N’Jai v.
Pittsburgh Bd. of Pub. Ed., No. 2:10-cv-01323 (W.D. Pa. Feb. 9, 2011), ECF No. 37. Upon appeal,
the Court of Appeals for the Third Circuit ruled that this Court had not abused its discretion in
denying Plaintiff’s motion. N’Jai v. Pittsburgh Bd. of Pub. Ed., 487 Fed. App’x. 735, 738 (3d Cir.
2012).
II.

LEGAL ANALYSIS
Plaintiff’s Motion does not cite the statutory basis for recusal, so this Court will consider

both possible statutory bases, 28 U.S.C. § 144 and 28 U.S.C. § 455. Although the legal standard of
recusal is the same under each provision—bias—the provisions differ slightly.
Section 144 requires federal district court judges to recuse if a party timely files a sufficient
affidavit, setting forth factual statements showing the judge has personal bias or prejudice against a
party. 28 U.S.C. § 144. An affidavit that puts forth conclusory statements and opinions, however,
is insufficient and does not require recusal under § 144. Hill v. Carpenter, 323 F. App’x 167, 170
(3d Cir. 2009). Section 455 applies regardless of whether a party files a formal motion and
affidavit for recusal, and requires recusal when a judge’s impartiality “might reasonably be
questioned,” 28 U.S.C. § 455(a), or “[w]here [she] has a personal bias or prejudice concerning a
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party.” 28 U.S.C. § 455(b)(1).
The test for recusal is an objective one and requires recusal where a “reasonable person,
with knowledge of all the facts, would conclude that the judge’s impartiality might reasonably be
questioned.” In re Kensington Int’l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). The bias required
before recusal is warranted under either § 144 or § 455 “must stem from a source outside of the
official proceedings.” Liteky v. United States, 510 U.S. 540, 544, 554 (1994). Moreover, the Court
of Appeals for the Third Circuit has made it clear that “a party’s displeasure with legal rulings does
not form an adequate basis for recusal.” Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d
273, 278 (3d Cir. 2000). The Circuit recently reinforced the point that disqualification and recusal
should not be methods of “judge shop[ping].” In re Earl A. Pondexter, No. 13-3451, 2013 WL
5229973, at *1 (3d Cir. Sept. 18, 2013). In order to establish the level of bias necessary to require
recusal, facts that arose during the course of litigation are usually insufficient. Generally,
“opinions formed by a judge on the basis of events occurring in the course of prior proceedings do
not constitute a basis for a bias motion under 28 U.S.C. §§ 144, 455(a) and 455(b)(1), unless they
display a deep-seated antagonism that would make fair judgment impossible.” Atwell v.
Schweiker, 274 F. App’x 116, 117 (3d Cir. 2007).
Applied to this case, Plaintiff has not met the standard for recusal under either § 144 or
under § 455. First, under § 144, although Plaintiff did timely file this Motion seeking recusal, and
included a document titled “Affidavit” that apparently incorporates, by reference, the allegations
set forth within the Motion, the Affidavit is insufficient. Plaintiff has not submitted any objective,
factual assertions that would indicate bias. Instead, Plaintiff’s proffered grounds for recusal
amount to conclusions and opinions that derive from prior litigation, and therefore will not trigger
recusal under § 144. Hill v. Carpenter, 323 F. App’x 167, 170 (3d Cir. 2009).
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Second, recusal is also not required under § 455’s objective standard. As explained,
Plaintiff’s arguments are all rooted in previous legal proceedings, including contacts with the
Court and unfavorable rulings. (Docket No. [4], at 2). She raises no allegations of bias that have an
extrajudicial source, and also fails to assert facts indicating that this Judge holds a deep-seated
antagonism that would prevent fair adjudication.
Furthermore, this Court finds it significant that Plaintiff’s allegations were all included in
her arguments to the Third Circuit in N’Jai v. Pittsburgh Board of Public Education. See
Appellant’s Informal Brief, No. 11-3320 (3d Cir. Jan. 21, 2012), ECF Doc. 003110783923.
In its opinion, the Third Circuit explained,
[T]he District Court did not abuse its discretion in denying N’Jai’s request for
recusal. . . . N’Jai alleged that Judge Fischer was biased because she had ruled
against her in a previous case. We have held, however, that an unfavorable ruling is
not a basis for recusal. Securacomm Consulting, Inc., 224 F.3d at 278. In addition,
recusal was not warranted based on the inquiry from a deputy in Judge Fischer’s
chambers to an attorney for the NAACP regarding the status of a pleading. Cf. In re
Kensington Int’l. Ltd., 368 F.3d 289, 305 (3d Cir. 2004) (“We do not hold that ex
parte communications alone—in the absence of any conflict of interest—require
recusal.”).
N’Jai v. Pittsburgh Bd. of Pub. Ed., 487 Fed. App’x. 735, 738 (3d Cir. 2012). The Third Circuit’s
ruling that recusal was not required in that case bolsters this Court’s conclusion that recusal is not
required now.
III. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Motion [4] is DENIED,
without prejudice.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge

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Dated: September 25, 2013
cc/ecf: All counsel of record
Jacquelyn B. N’Jai
P.O. Box 10133
Pittsburgh, PA 15232
(regular and certified mail)

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