Amrhein v. United States of America, et al

Filing 19

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Plaintiff's Motion to Recuse & Mandatory Disqualifications of Judges Amos Mazzant III & Magistrate Christine Nowak for Timely "Good Cause Reasons" & to Stay this Lawsuit (Dkt. 18 ) 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. AMRHEIN
v.
UNITED STATES OF AMERICA, ET AL.

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§
§
§

Civil Action No. 4:16-CV-223
(Judge Mazzant/Judge Nowak)

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiff’s Motion to Recuse & Mandatory Disqualifications
of Judges Amos Mazzant III & Magistrate Christine Nowak for Timely “Good Cause Reasons” &
to Stay this Lawsuit (“Motion to Recuse”) (Dkt. #18). Having considered the relevant pleadings,
the Court finds Plaintiff’s Motion to Recuse (Dkt. #18) should be denied.
Plaintiff filed the Motion to Recuse on August 8, 2017, seeking to recuse the Court1 under
28 U.S.C. § 455 and various Texas statutes (see Dkt. #18). Construing the Motion to Recuse
liberally, the Court discerns pro se Plaintiff alleges 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 previously
dismissed another, similar case Plaintiff has brought before the Court; (3) the Court has once
warned Plaintiff in another case that repeated filings in a closed case may result in sanctions; and
(4) 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. #18 at 2, 3, 5, 13-14).
As an initial matter, the Court notes none of the Texas statutes and/or Rules of Civil
Procedure Plaintiff cites governs recusal of federal judges. See, e.g., Tex. Gov’t Code § 74.059

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Specifically, Plaintiff seeks 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.”

(governing powers and duties of Texas 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, Plaintiff, as the party moving to recuse, bears “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)
(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

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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.”).
In the instant case, and as noted supra, Plaintiff asserts recusal is appropriate first because
the Court withheld service of process pending review of the Amended Complaint under the in
forma pauperis screening statute, 28 U.S.C. § 1915 (see Dkt. #18 at 3, 5, 13). Although Federal

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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 pending such screening in this case.
Plaintiff also seemingly argues recusal is appropriate because the Court has presided over
(and dismissed) another of Plaintiff’s lawsuits filed in the Eastern District of Texas, namely
Balistreri-Amrhein v. Verilli et al., Eastern District of Texas Case No. 4:16-cv-112 (“Amrhein
EDTX I”) (see Dkt. #18 at 2). The U.S. Supreme Court has 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

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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
dismissed Plaintiff’s claims in Amrhein EDTX I on the basis of the law as it applied to the facts
Plaintiff presented in that case. See Amrhein EDTX I, 4:16-cv-112, Dkt. #133. Other than this
reference—“28 U.S.C. § 455(a)(b)et seq.Applies [sic] to Above Lawsuit 4:16-CV-00112-ALMCAN”—Plaintiff provides no explanation about how the Court’s rulings in the Amrhein EDTX I
case have any bearing on the instant matter. See Parker v. Bd. of Supervisors Univ. of La.Lafayette, 270 F. App’x 314, 316 (5th Cir. 2008) (per curiam) (finding district court did not abuse
its discretion in denying recusal motion where movant “provided no other source of bias or
prejudice against him personally, or against pro se litigants in general, other than the district court
judge’s dismissal of his previous case”). The Court’s consideration and dismissal of Plaintiff’s
other case pending in the Eastern District of Texas does not provide any basis for recusal.
Plaintiff’s third argument for recusal seemingly rests upon the Court’s admonishment in
the Amrhein EDTX I case that “Plaintiff 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.” 4:16-cv-112, Dkt. #139 at 4.
But this admonishment, like the Court’s determination that Plaintiff’s claims in Amrhein EDTX I
should be dismissed, 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 [the Amrhein EDTX I] case[,]” specifically her repeated filings for

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reconsideration after closure of the case. See Amrhein EDTX I, 4:16-cv-112, Dkt. #139 at 2-3.
Such warning was appropriate under the circumstances. See United States v. Fulton, 469 F. App’x
322, 324 (5th Cir. 2012) (per curiam); see also Amrhein v. Riechert, No. 3:12-CV-03707-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 after
considering her litigation history and filing behavior before the Northern District of Texas). The
Court’s warning to Plaintiff in the Amrhein EDTX I case provides no basis for recusal.
Plaintiff cites as a fourth reason for recusal the Court’s dismissal of an unrelated civil action
involving Defendant Texas Attorney General Kenneth Paxton: Plaintiff claims the Court “tossed
Defendant Attorney General Paxton Security Fraud Suit Oct 7, 2016 making ‘favors for friends’”
(Dkt. #18 at 5). Plaintiff insinuates that the Court has a relationship with Defendant Paxton that
creates an appearance of impropriety (or actual bias) but alleges 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.

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CONCLUSION
.

It is therefore ORDERED that Plaintiff’s Motion to Recuse & Mandatory
Disqualifications of Judges Amos Mazzant III & Magistrate Christine Nowak for Timely “Good
Cause Reasons” & to Stay this Lawsuit (Dkt. #18) 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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