Balistreri-Amrhein v. Verrilli, Jr. et al

Filing 146

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Plaintiffs' Motion to Recuse & Mandatory Disqualifications of Judges Amos Mazzant III & Magistrate Christine Nowak for Timely "Good Cause Reasons" (Dkt. 142 ) is hereby DENIED. Signed by Judge Amos L. Mazzant, III on 9/6/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

DARLENE C. BALISTRERI-AMRHEIN,
ANTHONY J. BALISTRERI, DECEASED
v.
DONALD VERRILLI, JR., UNITED
STATES SOLICITER GENERAL, ET AL.

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Civil Action No. 4:16-CV-112
(Judge Mazzant/Judge Nowak)

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion to Recuse & Mandatory Disqualifications
of Judges Amos Mazzant III & Magistrate Christine Nowak for Timely “Good Cause Reasons”
(“Motion to Recuse”) (Dkt. #142). Having considered the relevant pleadings, the Court finds
Plaintiffs’ Motion to Recuse (Dkt. #142) should be denied.
Plaintiffs1 filed the Motion to Recuse on August 7, 2017, seeking to recuse the Court2 under
28 U.S.C. § 455 and various Texas statutes (see Dkt. #142). Construing the Motion to Recuse
liberally, the Court discerns pro se Plaintiffs allege four bases for recusal: (1) the Court withheld
service in this case pending judicial screening under 28 U.S.C. § 1915(e); (2) the Court has once
warned Plaintiff Darlene C. Amrhein that repeated filings in a closed case may result in sanctions;
and (3) the Court’s decisions in this matter are motivated not by the law but by the Court’s “favor[]
for friends” who appear as Defendants in this matter, namely “Defendant Attorney General
Paxton” (Dkt. #142 at 3, 5, 14-15).

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The Court has previously dismissed Plaintiff Anthony J. Balistreri from this lawsuit, as Mr. Balistreri predeceased
this lawsuit and Plaintiff Darlene C. Amrhein failed to proffer evidence showing she had authority to proceed on his
behalf pro se. Because Darlene C. Amrhein continues to refer to “Plaintiffs,” however, the Court refers to “Plaintiffs”
for ease of reference in this Order.
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Specifically, Plaintiffs seek recusal of the undersigned and the United States Magistrate Judge assigned to this case.
The Court refers hereinafter and collectively to both judges as the “Court.”

As an initial matter, the Court notes none of the Texas statutes and/or Rules of Civil
Procedure Plaintiffs cite governs recusal of federal judges. See, e.g., Tex. Gov’t Code § 74.059
(governing powers and duties of Texas state district, statutory probate and statutory county court
judges); id. § 25.00255 (governing recusal of Texas state statutory probate court judges); Tex. R.
Civ. P. 18A (outlining the standards and procedure applicable when a party seeks to recuse Texas
state judges); see also Hill v. Mississippi, 427 F. App’x 317, 318 (5th Cir. 2011) (per curiam)
(applying federal recusal statute to federal judge who previously had presided over prisoner’s state
proceedings in earlier position as a state judge). In any event, the Court detects no material
difference in the substantive state and federal rules governing recusal in Texas.

Compare

28 U.S.C. § 455, with Tex. R. Civ. P. 18b. Accordingly, the Court applies the applicable federal
statute, § 455.
Under § 455, Plaintiffs, as the party moving to recuse, bear “a heavy burden of proof” in
showing the Court should recuse. E.g., United States v. Reggie, No. 13-111-SDD-SCR, 2014 WL
1664256, at *2 (M.D. La. Apr. 25, 2014). The statute provides that “[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.” 28 U.S.C. § 455. The decision whether to recuse
under § 455 is committed to the sound discretion of the Court asked to recuse. See, e.g., Garcia
v. City of Laredo, 702 F.3d 788, 793-94 (5th Cir. 2012); Sensley v. Albritton, 385 F.3d 591, 598
(5th Cir. 2004) (quoting Chitimacha Tribe v. Harry L. Laws Co., 690 F.2d 1157, 1166 (5th Cir.
1982)).
The U.S. Supreme Court has made clear “[t]he recusal inquiry must be made from the
perspective of a reasonable observer who is informed of all the surrounding facts and
circumstances.” Cheney v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913, 924 (2004)

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(emphases added); see also United States v. Morrison, 833 F.3d 491, 506 (5th Cir. 2016), cert.
denied, 137 S. Ct. 1098, 197 L. Ed. 2d 206 (2017). The Fifth Circuit has interpreted this mandate
to mean that “[courts] ask how things appear to the well-informed, thoughtful and objective
observer, rather than the hypersensitive, cynical, and suspicious person” while remaining “mindful
that an observer of our judicial system is less likely to credit judges’ impartiality than the judiciary”
would be. United States v. Jordan, 49 F.3d 152, 156-57 (5th Cir. 1995). Indeed, the statute exists
to mandate recusal in cases where it truly appears (or is the case that) the presiding judge cannot
consider the case impartially—not where a litigant’s speculation based on incomplete information
implies concealment and impropriety. See H.R. REP. NO. 93-1453, at 6355 (1974).
Further, the recusal inquiry is “extremely fact intensive and fact bound” and requires “a
close recitation of the factual basis for the . . . recusal motion” by the movant. Republic of Panama
v. Am. Tobacco Co., Inc., 217 F.3d 343, 346 (5th Cir. 2000). A court’s own analysis must likewise
“be guided, not by comparison to similar situations addressed by prior jurisprudence, but rather by
an independent examination of the facts and circumstances of the particular claim.” Id.; see also
United States v. Bremers, 195 F.3d 221, 226-27 (5th Cir. 1999) (finding that a “similar situation”
presented in another case calling for the same district judge’s recusal merited independent
consideration). Fortuitous timing of a recusal motion—immediately following an unfavorable
ruling, for example—warrants closer consideration of the movant’s intent in seeking recusal. See
United States v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998) (“The most egregious delay—the
closest thing to per se untimeliness—occurs when a party already knows the facts purportedly
showing an appearance of impropriety but waits until after an adverse decision has been made by
the judge before raising the issue of recusal.”).

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In the instant case, and as noted supra, Plaintiffs assert recusal is appropriate because the
Court withheld service of process of the live pleading—Plaintiffs’ Third Amended Complaint
(Dkt. #126) pending review of the Third Amended Complaint under the in forma pauperis
screening statute, 28 U.S.C. § 1915 (see Dkt. #142 at 3, 5, 13). Although Federal Rule of Civil
Procedure 4(m) prescribes service of process “within ninety days after the complaint is filed,” it
also permits a court to toll that period in certain circumstances. See Fed. R. Civ. P. 4(m). Relevant
here, a court may withhold service where the plaintiff proceeds in forma pauperis pending the
court’s screening of the complaint for frivolousness under Section 1915. See, e.g., Shabazz, 380
F. Supp. 2d at 799-800; Coleman v. Colvin, No. 3:16-cv-2608-D-BK, 2017 WL 2348812, at *1
(N.D. Tex. Apr. 13, 2017) (“Plaintiff’s pro se complaint was referred to the United States
magistrate judge for judicial screening. The Court granted the motion to proceed in forma
pauperis, but did not issue process pending preliminary screening.”); cf. Osborne v. Texas, No. A13-CV-528-LY, 2013 WL 5556210, at *3 (W.D. Tex. Oct. 8, 2013) (noting courts have a “duty to
screen for frivolousness” in certain cases and finding sua sponte examination of the merits of a
plaintiff’s case prior to service proper). Accordingly, Section 1915, as interpreted by courts within
the Fifth Circuit, contemplates screening of complaints filed through Section 1915; no basis exists
for recusal by virtue of the Court’s withholding service of the Third Amended Complaint pending
such screening in this case.
Plaintiffs also seemingly argue recusal is appropriate in light of the Court’s admonishment
in its July 20, 2017 Order that “Plaintiff [Darlene C. Amrhein] has exhausted her options at the
District Court level; any further relief must be sought before the Fifth Circuit. Plaintiff is warned
against making further frivolous and/or meritless requests for reconsideration in this case”
(Dkt. #139 at 4). Plaintiffs allege such statement demonstrates bias. The U.S. Supreme Court has

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noted that, generally, a movant must point to an “extrajudicial” source of bias in order to obtain
recusal. Liteky v. United States, 510 U.S. 540, 544-45 (1994) (citing United States v. Grinnell,
384 U.S. 563, 583 (1966)). Further, “trial rulings have a judicial expression rather than a judicial
source” such that “judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Id. at 545, 555. Trial rulings instead “are proper grounds for appeal, not for recusal.”
Id. at 555. Moreover, “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.” Id. (noting also that this applies to opinions manifested
as “judicial remarks”). The Court’s admonishment does not constitute an “extrajudicial” statement
the proper target of a recusal motion and does not evince “a deep-seated favoritism or antagonism
that would make fair judgment impossible.” See Liteky, 510 U.S. at 544-45, 555. Rather, the
Court rendered such warning in light of “Plaintiff’s litigation history [in other cases], considered
alongside Plaintiff’s filing behavior in this case[,]” specifically the repeated filings for
reconsideration after closure of the case (Dkt. #139 at 2-3). Such warning was (and remains)
appropriate under the circumstances (see generally Dkts. #134-145). See United States v. Fulton,
469 F. App’x 322, 324 (5th Cir. 2012) (per curiam); see also Amrhein v. Riechert, No. 3:12-CV03707-G-BK, 2013 WL 1155473, at *13-14 (N.D. Tex. Feb. 1, 2013), report and recommendation
adopted, 2013 WL 1174571 (N.D. Tex. Mar. 21, 2013) (imposing broad pre-filing injunction on
Plaintiff Darlene C. Amrhein after considering her litigation history and filing behavior before the
Northern District of Texas). The Court’s warning to Plaintiffs about repeated, frivolous filings in
this case provides no basis for recusal.

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Plaintiffs cite as a third reason for recusal the Court’s dismissal of an unrelated civil action
involving Defendant Texas Attorney General Kenneth Paxton: Plaintiffs claim the Court “tossed
Defendant Attorney General Paxton Security Fraud Suit Oct 7, 2016 making ‘favors for friends’”
(Dkt. #142 at 5). Plaintiffs insinuate that the Court has a relationship with Defendant Paxton that
creates an appearance of impropriety (or actual bias) but allege no relation other than one the Court
has as judge presiding over lawsuits in which Defendant Paxton is a named litigant. Further, and
again, the Court’s rulings—either in this matter or any other—do not themselves serve as a basis
for recusal. E.g., Beemer v. Holder, No. CV B-08-449, 2011 WL 13180172, at *4 (S.D. Tex. Aug.
19, 2011) (finding pro se plaintiff’s allegations that the presiding judge’s determinations in other
cases formed a basis for the judge’s recusal in the pending case “[ran] afoul of the settled rule that
‘inferences drawn from prior judicial determinations are insufficient grounds for recusal’”). The
Court finds no basis for recusal in this matter.
CONCLUSION
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It is therefore ORDERED that Plaintiffs’ Motion to Recuse & Mandatory
Disqualifications of Judges Amos Mazzant III & Magistrate Christine Nowak for Timely “Good
Cause Reasons” (Dkt. #142) is hereby DENIED.
IT IS SO ORDERED.
SIGNED this 6th day of September, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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