Schwarzer v. Shanklin et al
Filing
40
MEMORANDUM OPINION AND ORDER. It is ORDERED that Plaintiff's motion to recuse the undersigned (Dkt. # 37 ) is DENIED. It is further ORDERED that Plaintiff's motion for a new hearing (Dkt. # 39 ) is DENIED as moot. It is finally ORDERED that the Clerk of Court STRIKE Plaintiff's amended complaint (Dkt. # 38 ) as improperly filed in a closed case. Signed by District Judge Amos L. Mazzant, III on 08/15/2023. (jmb)
Case 4:18-cv-00434-ALM-KPJ Document 40 Filed 08/15/23 Page 1 of 6 PageID #: 564
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION
MARK CLIFF SCHWARZER, #1433741
VS.
BRODY SHANKLIN, ET AL.
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CIVIL ACTION NO. 4:18cv434
MEMORANDUM OPINION AND ORDER
Before the Court is pro se Plaintiff Mark Cliff Schwarzer’s motion to recuse the
undersigned (Dkt. #37), Plaintiff’s amended complaint (Dkt. #38), and Plaintiff’s motion for a new
hearing (Dkt. #39).
I. BACKGROUND
Plaintiff filed a civil rights complaint pursuant to 42 U.S.C. §1983. He claimed Defendants,
who are State judges and State employees, violated his constitutional rights throughout the
prosecution of his criminal proceedings in Denton County, Texas. Plaintiff brought suit against
Defendants in their official and individual capacities and sought prospective relief and any fees
associated with the lawsuit.
On March 13, 2019, the undersigned issued a Memorandum Opinion and Order (Dkt. # 20)
and Final Judgment (Dkt. # 21) granting Defendants’ motions to dismiss and dismissing Plaintiff’s
complaint with prejudice. The undersigned concluded Plaintiff failed to (1) establish standing
because federal courts have no jurisdiction to direct State courts or their judicial agents in the
performance of their duties or (2) show that Defendants were not immune from suit under the
Eleventh Amendment. (Dkt. #20). In July 2019, Plaintiff filed a Motion to Supplement First
Amended Complaint (Dkt. #25), which a United States Magistrate Judge denied as moot because
Plaintiff’s claims had been dismissed with prejudice and a Final Judgment. (Dkt. #28). On January
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12, 2020, the undersigned denied Plaintiff’s motion to alter or amend the judgment (Dkt. #22)
under Federal Rule of Civil Procedure 59(e). (Dkt. #31). Plaintiff appealed both the dismissal of
his complaint and the denial of his Rule 59(e) motion to the Fifth Circuit Court of Appeals. (Dkt.
#32). On September 21, 2021, the Fifth Circuit affirmed the judgment of the district court. (Dkt.
#34). The mandate issued on October 21, 2021. (Dkt. #34).
II. ANALYSIS
A. Motion to Recuse
Plaintiff has filed a motion to recuse the undersigned. (Dkt. #37). In support of his motion,
Plaintiff alleges:
As the federal judge assigned to the case, Amos Mazzant, violated his oaths and the
Code of Judicial Conduct when he decided to prematurely end the case after
Schwarzer tried to file a First Amended Complaint and a Motion for Class Action
in February 2019. The judge dismissed the suit on March 13th. [Plaintiff] had the
First Amended Complaint sent again, which was delivered to the court on
November 6th and signed by D. Jones. Since the docket does not show the second,
certified, pleading, it is apparent that it too was tossed out.
Why Mazzant chose to throw away legal pleadings in his courtroom is still a
mystery but it is clear that he has crossed the line in regards to [Plaintiff’s] civil and
constitutional rights. He should be permanently disbarred.
(Dkt. #37, p. 2).
Disqualification and recusal of a federal judge are governed by 28 U.S.C. § 144 and § 455.
Plaintiff does not cite whether he brings his motion under § 144 or § 455. 1 In an abundance of
caution, the Court considers Plaintiff’s motion under § 144 and § 455.
Plaintiff only cites to federal regulations applicable to administrative proceedings and the Code of Conduct for United
States Judges. (Dkt. #37, p. 2 (citing 29 C.F.R. § 2200.68 and Cannon 3(C) of the Code of Conduct for United States
Judges)). The regulation invoked in his motion does not apply at all. See, e.g., 29 C.F.R. §§ 2200.1(b), (f); 2200.2(a)
(application of the regulations to “all proceedings before the [Occupational Safety and Health Review Commission]
and its Judges”); see also 29 U.S.C. § 652(2).
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“Section 144 requires that when a party to any proceeding in a district court makes and
files a timely and sufficient affidavit alleging 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, and another judge shall be assigned to hear the proceeding.” Shugart v. Hoover,
No. 4:17-CV-633, 2018 WL 647769, at *1 (E.D. Tex. Jan. 31, 2018) (quoting Thornton v. Hughes,
Watters & Askanase, LLP, No. 2:16-CV-66, 2016 WL 8710442, at *5 (S.D. Tex. Oct. 21, 2016),
report and recommendation adopted, No. 2:16-CV-66, 2016 WL 6775676 (S.D. Tex. Nov. 16,
2016) (citing 28 U.S.C. § 144)). A legally sufficient affidavit must meet the following
requirements: (1) the facts must be material and stated with particularity; (2) the facts must be such
that if true, would convince a reasonable person that a bias exists; and (3) the facts must show that
the bias is personal, as opposed to judicial, in nature. Henderson v. Dep’t of Pub. Safety & Corr.,
901 F.2d 1288, 1296 (5th Cir. 1990) (citing Parrish v. Bd. of Comm’rs of Alabama State Bar, 524
F.2d 98, 100 (5th Cir. 1975)); United States v. Merkt, 794 F.2d 950, 960 (5th Cir. 1986). If the
affidavit is not legally sufficient under § 144, there is no need for referral of the matter to another
judge. 2 Id.
Under § 455, “[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 United States Supreme Court has made clear
Plaintiff’s motion contains a “Verification” wherein Plaintiff avers “the matters alleged therein are true” and certifies
the statements in the pleading are “true and correct” under “penalty of perjury.” (Dkt. #37, p. 3). The pleading will be
treated as one made under oath in order to give Plaintiff the benefit of the doubt.
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“[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. Ct. 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 (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.” Shugart, 2018 WL
647769, at *2 (citing 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).
In the instant case, and as noted supra, Plaintiff asserts recusal is appropriate because the
undersigned dismissed his lawsuit which demonstrates the undersigned’s prejudice against
prisoner lawsuits. (Dkt. #37, p. 1). The entirety of Plaintiff’s unfounded accusations relates to the
undersigned’s rulings as a district judge in Plaintiff’s case, which cannot form the basis of a motion
to recuse. See United States v. MMR Corp., 954 F.2d 1040, 1045 (5th Cir. 1992) (a plaintiff’s
complaints about adverse rulings are not an adequate basis for demanding recusal); Green v.
Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (same); Thornton, 2016 WL 8710442, at *5 (“To
the extent that [the plaintiffs] complain of adverse rulings, such rulings are not an adequate basis
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for demanding recusal.”). “[T]rial 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.” Liteky v. United States, 510 U.S. 540, 555 (1994) (citing United States v. Grinnell, 384
U.S. 563, 583 (1966)). Moreover, the undersigned’s statements made in consideration of Plaintiff’s
case do “not demonstrate ‘a deep-seated favoritism or antagonism that would make fair judgment
impossible,’ [and therefore,] they fail[]to support a claim for bias or prejudice.” United States v.
Stanley, 595 F’ Appx. 314, 320 (5th Cir. 2014). The recusal and disqualification statutes are not
designed to substitute for an appeal; Plaintiff’s remedy lay in appealing the undersigned’s rulings
to the Fifth Circuit Court of Appeals, which he has done. See Liteky, 510 U.S. at 541 (a judge’s
rulings “are proper grounds for appeal, not for recusal”); Thornton, 2016 WL 8710442, at *5.
Plaintiff’s allegations that certain of his pleadings were not filed by the Clerk of are
conclusory and devoid of support. The docket does not indicate any pleadings were “tossed out”
or not filed, or that the undersigned directed the Clerk of Court to do so. Plaintiff’s vague and
conclusory allegations do not establish the undersigned was biased.
Because Plaintiff’s motion fails to sufficiently show bias or prejudice, the Court finds no
basis for recusal in this matter.
B. Amended Complaint and Motion for a New Hearing
Final judgment has entered, and this case is closed. Under these circumstances, Plaintiff’s
amended complaint is not properly filed and a motion for a new hearing is moot.
III. CONCLUSION
It is therefore ORDERED that Plaintiff’s motion to recuse the undersigned (Dkt. #37) is
DENIED. It is further ORDERED that Plaintiff’s motion for a new hearing (Dkt. #39) is
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.
DENIED as moot. It is finally ORDERED that the Clerk of Court STRIKE Plaintiff’s amended
complaint (Dkt. #38) as improperly filed in a closed case.
SIGNED this 15th day of August, 2023.
___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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