Douglas v. McLain et al

Filing 10

ORDER DENYING MOTION FOR RECUSAL 7 9 . Signed by Judge James D. Todd on 10/29/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
JEFFERY G. DOUGLAS,
Plaintiff,
VS.
JOSH McCLAIN, ET AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)

No. 14-1247-JDT-egb

ORDER DENYING MOTION FOR RECUSAL

On September 22, 2014, the pro se prisoner Plaintiff, Jeffery G. Douglas, filed a complaint
pursuant to 42 U.S.C. § 1983. (ECF No. 1.) The Court subsequently granted leave to proceed in
forma pauperis and assessed the civil filing fee in accordance with 28 U.S.C. §§ 1915(a)-(b). (ECF
No. 4.) The case is in the process of being screened under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b). On May 22, 2015, Plaintiff filed a motion for recusal of the undersigned Judge. (ECF
No. 7.) A duplicate copy of that motion was filed on October 29, 2015. (ECF No. 9.)
Plaintiff’s only reason for requesting recusal is that the undersigned also presided in two of
Plaintiff’s previous suits and dismissed those cases. See Douglas v. F.S., No. 15-1046-JDT-egb
(W.D. Tenn. Apr. 24, 2015) (dismissing case for failure to state a claim and lack of jurisdiction and
assessing third strike); Douglas v. Gregory, No. 14-1302-JDT-egb (W.D. Tenn. Apr. 13, 2015)
(directing entry of judgment and assessing second strike when Plaintiff failed to file amended
complaint after original complaint was dismissed for failure to state a claim).

Motions for recusal are governed by 28 U.S.C. § 144 and 28 U.S.C. § 455. Section 144
provides:
Whenever a party to any proceeding in a district court makes and files a timely and
sufficient affidavit that the judge before whom the matter is pending has a personal
bias or prejudice either against him or in favor of any adverse party, such judge shall
proceed no further therein, but another judge shall be assigned to hear such
proceeding.
In addition, § 455(a) provides that a judge shall be disqualified “in any proceeding in which his
impartiality might reasonably be questioned.” Circumstances under which a judge must be
disqualified include:
(1)
(2)

(3)

(4)
(5)

Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceedings;
Where in private practice he served as lawyer in the matter in controversy,
or a lawyer with whom he previously practiced law served during such
association as a lawyer concerning the matter, or the judge or such lawyer
has been a material witness concerning it;
Where he has served in governmental employment and in such capacity
participated as counsel, adviser, or material witness concerning the
proceeding or expressed an opinion concerning the merits of the particular
case . . . ;
He knows that he . . . has a financial interest in the subject matter in
controversy;
He or his spouse . . . :
(i)
Is a party to the proceeding . . . ;
(ii)
Is acting as a lawyer in the proceeding;
(iii) Is known by the judge to have an interest that could be substantially affected
by the outcome of the proceeding;
(iv)
Is to the judge’s knowledge likely to be a material witness in the proceeding.

Id. § 455(b).
A judge must be recused if, knowing all of the circumstances, a reasonable, objective person
would question the judge’s impartiality. United States v. Sammons, 918 F.2d 592, 599 (6th Cir.
1990). “The standard is an objective one; hence, the judge need not recuse himself based on the
‘subjective view of a party’ no matter how strongly that view is held.” Id. (citation omitted). Bias
2

sufficient to justify recusal must be personal, arising out of the judge’s background, and not based
on the judge’s interpretation of the law. Browning v. Foltz, 837 F.2d 276, 279 (6th Cir. 1988). A
judge’s participation in the proceedings or prior contact with related cases cannot support a demand
for recusal. Sammons, 918 F.2d at 599. Sections 144 and 455 are to be read in pari materia to
require that disqualification be predicated upon extrajudicial conduct, rather than judicial conduct,
and to require that the alleged bias and prejudice be personal rather than judicial.1 Ullmo ex rel.
Ullmo v. Gilmour Acad., 273 F.3d 671, 681 (6th Cir. 2001); United States v. Story, 716 F.2d 1088,
1096 (6th Cir. 1983). A judge is presumed to be impartial, and a party seeking disqualification bears
the burden of alleging facts that would lead a reasonable person to question the neutrality of the
judge. United States v. Adams, 38 F.3d 1217, 1994 WL 589509 (6th Cir. 1994) (citing Holt v. KMI
Continental, Inc., 821 F. Supp. 846, 847 (D. Conn.1993)).
Here, Plaintiff’s motion for recusal is based solely on the undersigned’s dismissal of his prior
cases, not on any extrajudicial conduct. He has submitted no affidavit setting forth any facts that
would call into question this Judge’s impartiality. Therefore, the motion for recusal is DENIED.
IT IS SO ORDERED.
s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

1

The Supreme Court has held that § 455(b)’s “extrajudicial source” doctrine also applies
to § 455(a). Liteky v. United States, 510 U.S. 540, 554-55 (1994).
3