Streater v. Allen et al

Filing 107

MEMORANDUM OPINION AND ORDER. Plaintiff's motion for recusal of the magistrate judge 97 is DENIED. Signed by Judge Ron Clark on 3/27/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
THEODORE STREATER

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VS.

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SHARON ALLEN, ET AL.

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CIVIL ACTION NO. 9:15-CV-68

MEMORANDUM OPINION AND ORDER
Plaintiff Theodore Streater, an inmate proceeding pro se, filed this civil rights action pursuant
to 42 U.S.C. § 1983. Plaintiff filed a second motion for recusal. Plaintiff alleges the magistrate judge
is biased because he allegedly authorized plaintiff’s transfer to a more restrictive prison unit.
Title 28 U.S.C. § 144 allows a party to make and file “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 . . . .” 28 U.S.C. § 144. In such a case, another judge shall be assigned to hear
further proceedings. Id. If an affidavit filed under §144 is timely and technically correct, the factual
allegations must be taken as true, and the trial judge may only consider the legal sufficiency of the
affidavit. United States v. Merkt, 794 F.2d 950, 960 (5th Cir. 1986). An affidavit is legally sufficient
if: (1) the facts are material and stated with particularity; (2) the facts, if true, would convince a
reasonable person that bias exists; and (3) the facts show that the bias is personal in nature. Id. at n. 9.
A party may file only one affidavit in a case. 28 U.S.C. § 144. Absent surrounding comments or
accompanying opinion, judicial rulings alone will rarely constitute a valid basis for a motion to recuse
or disqualify. Liteky v. United States, 510 U.S. 540, 555 (1994); Andrade v. Chojnacki, 338 F.3d 448,
455 (5th Cir. 2003).
The court may not pass on the truth of plaintiff’s assertion that the magistrate judge authorized
his transfer to another prison unit. Phillips v. Joint Legislative Committee on Performance &

Expenditure Review of State of Miss., 637 F.2d 1014, 1019 (5th Cir. 1981). The court may only
consider whether the affidavit is legally sufficient. Id. In this case, because plaintiff previously filed
an affidavit for recusal, he is barred from filing a second one. Therefore, the motion to recuse should
be denied. It is accordingly
ORDERED that plaintiff’s motion for recusal of the magistrate judge (document no. 97) is
DENIED.

So ORDERED and SIGNED this 27th day of March, 2017.

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