Soniat v. Mitchell
ORDER AND OPINION - DENYING 11 MOTION for Recusal filed by Shelley Soniat. Signed by Magistrate Judge Kimberly C Priest Johnson on 9/20/2017. (baf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
CAROLYN A MITCHELL,
CIVIL ACTION NO. 4:17-CV-00572
JUDGE MAZZANT/JUDGE JOHNON
ORDER AND OPINION
Pending before the Court is pro se Plaintiff Shelley Soniat’s Motion for Recusal (Dkt. 11).
For the following reasons, the Court finds Plaintiff’s motion (Dkt. 11) is DENIED.
Plaintiff previously filed a lawsuit in three separate actions in this district in 2014.1 The
case was referred to Magistrate Judge Don D. Bush from Judge Richard Schell (collectively, the
“Judicial Defendants”). Judge Bush denied Plaintiff’s request for the issuance of summons and
recommended Plaintiff’s case be dismissed with prejudice for failure to state a claim. See Soniat
v. Jackson, 2014 WL 6968871, at *2, 6 (E.D. Tex. Dec. 9, 2014). Judge Schell subsequently
adopted Judge Bush’s report and dismissed the consolidated action. See Soniat v. Jackson, 2015
WL 1503650 (E.D. Tex. Mar. 31, 2015). Plaintiff appealed, but the Fifth Circuit affirmed. See
Soniat v. Jackson, 628 F. App’x 292 (5th Cir. 2016). Plaintiff filed a petition for a writ of certiorari
in the Supreme Court, but it was denied on May 16, 2016. See Soniat v. Jackson, 136 S. Ct. 2016,
2016 WL 900300 (May 16, 2016).
See Soniat v. Jackson, et al., No. 4:14cv77, consolidated with 4:14cv122 and 4:14cv131 (E.D. Tex.).
On May 20, 2016, Plaintiff filed another lawsuit in this district against the Judicial
Defendants and the Department of Housing and Urban Development (“HUD”).2 She asserted the
Judicial Defendants discriminated against her by not allowing her to exercise and enjoy her rights
under the Fair Housing Act. Further, she asserted HUD’s policy of deferring to the Judicial
Defendants’ discretion and refusing to respond to her previous lawsuit has a discriminatory effect
on women and minorities. Specifically, Plaintiff claimed after the Judicial Defendants refused to
issue summons in her previous case, she sent a personal letter to HUD, and it refused to answer
her lawsuit, resulting in a discriminatory effect. On December 16, 2016, the undersigned entered
two Report and Recommendations recommending Plaintiff’s claims be dismissed against all of the
defendants in that suit, in which the district court adopted on January 6, 2017. See Soniat v. Dep’t
of Hous. & Urban Dev., 2017 WL 68562 (E.D. Tex. Jan. 6, 2017); Soniat v. Dep’t of Hous. &
Urban Dev., 2017 WL 73073 (E.D. Tex. Jan. 6, 2017). That case is currently pending on appeal.
On March 6, 2017, Plaintiff filed another action against Texas Real Estate Commission,
Texas Association of Realtors, and National Association of Realtors.3 Plaintiff essentially made
the same complaints as she did in her first two lawsuits in this district.4 On April 21, 2017, the
undersigned recommended Plaintiff’s claims against the Texas Association and Realtors and
National Association of Realtors be dismissed, in which the district court adopted on May 12,
2017. See Soniat v. Tex. Real Estate Comm’n, 2017 WL 2021323 (E.D. Tex. May 12, 2017). On
May 15, 2017, the undersigned recommended Plaintiff’s case against the Texas Real Estate
Commission be dismissed, in which the district court adopted on June 5, 2017. See Soniat v. Tex.
See Soniat v. Dep’t of Hous. & Urban Dev., No. 4:16cv337 (E.D. Tex.).
See Soniat v. Tex. Real Estate Comm’n, et al., No. 4:17cv166 (E.D. Tex.).
Plaintiff also filed a motion for appointment of an attorney in her previous case, in which the Court denied her
request. See Soniat v. Tex. Real Estate Comm’n, 2017 WL 1337630 (E.D. Tex. Apr. 12, 2017).
Real Estate Comm’n, 2017 WL 2426499 (E.D. Tex. June 5, 2017). That case is currently pending
On August 17, 2017, Plaintiff filed the instant action against Carolyn A. Mitchell, alleging
essentially the same facts as those asserted in her previous three lawsuits (Dkt. 1). On September
19, 2017, Plaintiff filed a motion requesting the undersigned and District Judge Amos Mazzant
recuse themselves from this case (Dkt. 11).
The Code of Judicial Conduct says a “judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably be questioned. . . .” Code of Judicial
Conduct, Canon 2.11. Congress codified almost identical language in 28 U.S.C. § 455(a): “Any
justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The purpose of
Section 455(a) is “to promote confidence in the judiciary by avoiding even the appearance of
impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847
(1988). Indeed, the Fifth Circuit further explained the statute's purpose:
Judicial ethics reinforced by statute exact more than virtuous behavior; they
command impeccable appearance. Purity of heart is not enough. Judge's robes must
be as spotless as their actual conduct. These expectations extend to those who make
up the contemporary judicial family, the judge's law clerks and secretaries.
Hall v. Small Bus. Admin., 695 F.2d 175, 176 (5th Cir. 1983). However, both the legislative history
of Section 455(a) and the Fifth Circuit admonish district courts faced with recusal motions to “be
alert to avoid the possibility that those who would question his impartiality are in fact seeking to
avoid the consequences of his expected adverse decision.” In re Corrugated Container Antitrust
Litig., 614 F.2d 958, 966 n.18 (5th Cir. 1980) (quoting the legislative history to Section 455(a));
Switzer v. Berry, 198 F.3d 1255, 1258 (10th Cir. 2000) (noting Section 455(a) did not intend to
give “litigants a veto power over sitting judges”).
The standard under 28 U.S.C. § 455(a) is objective: “Would the allegedly disqualifying
factor cause a reasonable person to question the judge's impartiality?” Thurmond v. Compaq
Computer Corp., 2000 WL 33795081, at *2 (Feb. 28, 2000) (citing Liteky v. United States, 510
U.S. 540, 548, 553 n.2 (1994); Levitt v. Univ. of Tex. at El Paso, 847 F.2d 221, 224–26 (5th Cir.
1988); Hall, 695 F.2d at 179).
Plaintiff states that her request for recusal “is in response to Document 7, the denial of
Plaintiff’s Motion for the Appointment of an Attorney.” See Dkt. 11 at 1. Plaintiff explains the
history of her three prior lawsuits in the district in her own words, citing to various cases and
statutes she believes are applicable to her case. Plaintiff then argues that she believes the
undersigned and Judge Mazzant denied her an attorney and services due to “Judicial ‘Ingroup’
Bias.” See id. at 8. Plaintiff vaguely contends that the undersigned and Judge Mazzant denied her
services because of their judicial bias towards Judge Bush and Judge Schell in her prior lawsuits.
See id. at 15.
The Court finds Plaintiff’s arguments for recusal are without merit. Plaintiff’s mere
disagreement with rulings made on motions in her prior lawsuits are not sufficient to show bias or
prejudice justifying recusal. See Liteky, 510 U.S. at 555. Additionally, opinions formed by a 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. See id. Plaintiff has
failed to identify a disqualifying factor that would cause a reasonable person to question the
undersigned or Judge Mazzant’s impartiality; thus, Plaintiff’s motion is denied.
For the foregoing reasons, the Court finds the motion (Dkt. 11) is DENIED.
It is SO ORDERED.
SIGNED this 20th day of September, 2017.
KIMBERLY C. PRIEST JOHNSON
UNITED STATES MAGISTRATE JUDGE
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