Harmon v. Dallas County, Texas et al
MEMORANDUM OPINION AND ORDER re: 63 Motion for Recusal. The court recognizes that there may be valid reasons to seek recusal or disqualification of a judge, but Plaintiff's Motion to Recuse presents no valid reasons for recusal or disquali fication. The court fully understands, and takes no exception, that a party may disagree with its legal rulings and appeal them. That is a party's right. The allegations and arguments that Plaintiff makes are not supported by facts or the law and simply are "beyond the pale." The court denies Plaintiff's Motion to Recuse (Doc. 63 ) under 28 U.S.C. § 144 or 28 U.S.C. §§ 455(a), (b)(2). (Ordered by Judge Sam A Lindsay on 8/8/2017) (axm)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS COUNTY, TEXAS and
§ Civil Action No. 3:13-CV-2083-L
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiff’s Motion to Recuse (Doc. 63), filed May 30, 2017. No response
to the motion was filed by either Defendant. Plaintiff moves for the recusal of the undersigned
pursuant to “28 U.S.C. § 144 and/or 28 U.S.C. § 455.” Pl.’s Mot. 1. After considering the motion,
the affidavit of Plaintiff’s counsel, the record, and applicable law, the court denies Plaintiff’s Motion
to Recuse (Doc. 63).
Plaintiff Norvis Harmon (“Plaintiff” or “Harmon”) brought this action against Defendants
Dallas County, Texas (“Dallas County” or “the County”) and former Dallas County Constable
Derick Evans (“Evans”) (collectively, “Defendants”) on June 3, 2013. Harmon was previously
employed by Dallas County in Constable Office, Precinct 1, as a deputy constable. His employment
was terminated on June 3, 2011. The termination of his employment is the subject of this lawsuit,
as well as a prior state court action filed by Harmon and two other deputy constables against Dallas
County on September 9, 2011, in the 44th Judicial District Court, Dallas County, Texas.
Memorandum Opinion and Order - Page 1
In the state court action, Harmon and the other plaintiffs asserted claims for alleged violations
of the Texas Whistleblower Act (“TWA”) and Texas Local Government Code § 617.004, and an
equal protection claim for alleged violations of the Texas Constitution. On March 28, 2012,
Harmon’s Whistleblower claim, equal protection claim, and claim for alleged violations of Texas
Government Code 617.005 in the state court action were dismissed with prejudice.
In his Complaint in this federal action, Harmon asserts two claims, pursuant 42 U.S.C. §
1983, for alleged constitutional violations based on the denial of equal protection to petition the
government and retaliation in violation of his First Amendment right to free speech. Pl.’s Compl.
4, 5 (referring to his claims as “Denial of Equal Protection” and “Free Speech Claim”). Harmon
contends that Defendants retaliated against him in terminating his employment in violation of his
First Amendment right to speak out on matters of public concern. Specifically, Harmon contends
that he was fired because he reported that Evans and the supervisors under Evans engaged in illegal
conduct in requiring deputy constables, including him, to: (1) donate time and money to Evans’s reelection campaign; (2) work unpaid for political allies and friends of Evans; and (3) tow citizens’
vehicles after traffic stops. In addition, Plaintiff asserts that he reported Evans’s illegal conduct in
setting traffic citation quotas in violation of the Texas Transportation Code § 720.002. Harmon
alleges that Defendants refused to hear the appeal of his termination through the Dallas County
grievance system because he was not employed as a Deputy Constable before August 19, 2003.
Harmon asserts that the Dallas County order that limits appeals of deputy constables’ grievances to
deputy constables hired before August 19, 2003, deprived him of the fundamental right to petition
Memorandum Opinion and Order - Page 2
the government for redress of grievances in violation of his right to equal protection of the law
guaranteed by United States Constitution. Defendants contend that Plaintiff’s claims are barred by
res judicata and fail for other reasons.
On February 26, 2015, former United States District Chief Judge Jorge A. Solis’s (“Judge
Solis”) ordered Plaintiff to file a reply under Federal Rule of Civil Procedure 7(a) regarding
“Defendants’ qualified immunity defenses.” Order 1 (Doc. 24). On March 18, 2015, Plaintiff filed
his Rule 7(a) Reply (Doc. 25) as directed. On April 17, 2015, Evans moved for judgment on the
pleadings under Federal Rule of Civil Procedure 12(c) on Plaintiff’s First Amendment free speech
and retaliation claim based on qualified immunity. On December 1, 2015, Judge Solis entered an
order denying Evans’s Motion for Judgment as a Matter of Law (“Motion for Judgment”).
The case was assigned to the undersigned on April 27, 2016, after Judge Solis retired. On
July 17, 2016, although the deadline set by Judge Solis for filing dispositive motions had expired,
the court granted the parties’ request to file limited summary judgment motions because the parties
represented that their motions would significantly narrow the issues to be tried. In their Limited
Motion for Summary Judgment (Doc. 39), Defendants contended that the two claims asserted by
Plaintiff in this action based on denial of equal protection and First Amendment free speech/
retaliation were barred by res judicata. Plaintiff contended in his partial summary judgment (Doc.
42) that he was entitled to judgment on his equal protection claim against Dallas County because his
right to petition the government for redress of grievances is a fundamental right, and Dallas County’s
ordinance that limits grievance rights to deputy constables hired after August 19, 2013, denied his
right to equal protection under the United States Constitution and also violated his First Amendment
right to petition the government.
Memorandum Opinion and Order - Page 3
In response to Plaintiff’s summary judgment motion, Defendants asserted that Plaintiff’s
equal protection claim, whether based on the alleged right to petition the government or the allegedly
discriminatory treatment of deputy constables, applied only to the County, not Evans, because the
rule that precluded Harmon from appealing the termination of his employment was put in place by
the County without input from Evans, and the denial of civil service protection to Harmon occurred
because of the County rule and for no other reason. In addition to contending that Plaintiff’s two
claims were barred by res judicata, Defendants requested that the court treat their response to
Plaintiff’s summary judgment motion as a cross-motion for summary judgment in the County’s favor
on the equal protection claim, which the County contended could be decided as a matter of law. In
his reply brief, Harmon never challenged Defendants’ contention that he had only asserted two
claims, one for denial of equal protection against the County and one for retaliation in violation of
his First Amendment right to free speech against both Defendants; nor did Harmon challenge
Defendants’ assertion that his equal protection claim was only against the County.
On January 16, 2017, before ruling on the parties’ summary judgment motions, the court gave
the parties notice of its decision to sua sponte revisit Judge Solis’s ruling on Evans’s Motion for
Judgment as follows:
In reviewing the parties’ motions, the court also necessarily reviewed the record in
this case, including . . . Chief Judge Jorge A. Solis’s . . . December 1, 2015 order
denying . . . Evans’s Motion for Judgment . . . , the parties’ briefs as to this motion,
and Plaintiff’s pleadings. In his order, it appears that Judge Solis addressed in a
general and conclusory manner the issue of whether the challenged conduct by . . .
Evans . . . —terminating . . . Harmon . . . in retaliation for his reporting conduct by
Evans and others that Harmon believed to be illegal—violated clearly established
federal statutory or constitutional rights.
In analyzing qualified immunity claims, the Supreme Court has “repeatedly
told courts . . . to not define clearly established law at a high level of generality.”
Memorandum Opinion and Order - Page 4
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citation omitted). According to
Mullenix, courts must consider “whether the violative nature of particular conduct is
clearly established” and must undertake this inquiry “in light of the specific context
of the case, not as a broad general proposition.” Id. (citations and internal quotations
Because the order on Evans’s Motion for Judgment did not consider whether
the nature of the challenged conduct was clearly established in the specific context
of this case, the court sua sponte revisits this issue, and directs the parties to file by
February 2, 2017, supplemental briefs on the issue. The parties’ briefs must not
exceed seven (7) pages, exclusive of signature pages, and shall address whether, in
light of Mullenix, Garcetti v. Ceballos, 547 U.S. 410 (2006), and related Supreme
Court and Fifth Circuit authority, the challenged conduct by Evans and corresponding
alleged violation of Harmon’s right to First Amendment free speech was clearly
established at the time his employment was terminated. No further filings will be
allowed regarding this issue unless directed by the court. To avoid further delay, no
extensions of time will be granted.
Order 1-2 (Doc. 52). On February 2, 2017, the parties submitted briefing regarding the specific issue
raised by the court of whether the nature of the challenged conduct, with respect to Plaintiff’s First
Amendment free speech and retaliation claim, was clearly established in the specific context of this
In addressing the issue raised by the court, Plaintiff advised in his supplemental brief that,
in addition to his two claims for alleged First Amendment free speech and retaliation and equal
protection violations, he also has a First Amendment petition claim against Evans that has not yet
been challenged by Evans. According to Plaintiff, his First Amendment petition claim is based on
his allegation that Evans refused to hear his grievance:
Harmon alleges “Defendant Evans illegally refused to hear Harmon’s grievance over
his termination, although Dallas County has claimed that all employees of Dallas
County have the right to appeal terminations to their department head. While Harmon
claims Dallas County’s policy denying grievance rights to him and other deputy
constables is a denial of equal protection, Harmon separately challenges Evans’
refusal to hear his grievance as a violation of his FIRST AMENDMENT petition
right that was clearly established in 1984. Evans has not sought a judgment on the
FIRST AMENDMENT petition claim. Retaliation claims under the Speech Clause
and the Petition Clause are analyzed in the same way. Accordingly, Harmon also
Memorandum Opinion and Order - Page 5
shows Evans has no qualified immunity as to the petition claim.
Wherefore, Harmon shows Judge Solis correctly rejected the qualified
Pl.’s Supp. Br. on Qualified Immunity 7 (footnotes omitted).
On March 31, 2017, the court concluded that Plaintiff’s claims against the County for denial
of equal protection and retaliation for the exercise of free speech under the First Amendment were
barred by res judicata and dismissed with prejudice these claims. The court further noted that any
claim against Evans under 1983 in his official capacity arising out of the events at issue in this case
would in effect have been a claim against the County that was also barred by res judicata. The court
further determined that Evans was entitled to judgment as a matter of law, based on qualified
immunity, on Plaintiff’s First Amendment free speech and retaliation claim against him in his
individual capacity. The court, therefore, vacated the portion of Judge Solis’s order in which the
clearly established law standard was applied to the facts of this case, and dismissed with prejudice
Plaintiff’s First Amendment free speech and retaliation claim.
The court believed that resolution of Plaintiff’s two claims based on denial of equal
protection and retaliation in violation of his alleged First Amendment right to free speech disposed
of all claims asserted by him in this case and expressed surprise as follows regarding Plaintiff’s
assertion that he had a third claim “First Amendment Petition Claim” against Evans:
That Plaintiff has a “First Amendment Petition Claim” is a surprise to the court, as
this is the first time that Plaintiff has mentioned anything about this claim. This is
likely the reason why Evans did not previously challenge the claim in his Motion for
Judgment based on qualified immunity. As noted, Evans expressed the belief in his
Motion for Judgment that Plaintiff’s section 1983 claim was based only on alleged
equal protection and First Amendment free speech violations. Dallas County and
Judge Solis were similarly operating under the assumption that these were Plaintiff’s
only claims. Judge Solis refers in passing in his December 1, 2015 order to
Memorandum Opinion and Order - Page 6
Plaintiff’s allegation “that Evans was fired and refused an appeal of his termination
after a GPS audit showed a discrepancy—even though other employees were not
fired for this same discrepancy or were at least given an appeal if they were fired,”
but it is clear that he was referring to this allegation in the context of Plaintiff’s First
Amendment free speech claim. Order 7 (Doc. 29).
Moreover, Judge Solis’s order requiring Plaintiff to file a Rule 7(a) Reply was
limited to “the issue of Defendants’ qualified immunity defenses,” Order (Doc. 24),
and did not grant Plaintiff leave to assert new causes of action or allegations
supporting new causes of action. While Judge Solis impliedly granted Plaintiff’s
request for leave in his response to Evans’s Motion for Judgment (Doc. 27), to
supplement his Complaint and Rule 7(a) Reply, Plaintiff said nothing in his motion
for leave or the proposed supplement to his Complaint and Rule 7(a) Reply about
asserting a new cause of action. Further, as noted in the factual background of this
opinion, Plaintiff’s allegation that he was deprived of a fundamental right to petition
the government for redress of grievances was previously made in support of his equal
protection claim, not the new “First Amendment Petition Claim” alluded to in his
Mem Op. and Order 16-17 (Doc. 55) (quoting J. Solis’s Orders (Docs. 24, 29)). The court went on
to note that qualified immunity is “immunity from suit rather than a mere defense to liability,” and
qualified immunity questions should, therefore, be determined at the earliest possible stage of
litigation. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Given the length of time that
the case had been pending, the court expressed “dismay with Plaintiff’s recent assertion regarding
a ‘First Amendment Petition Claim.’” Mem Op. and Order 17. Instead of dismissing this action, the
court allowed Evans to file a dispositive motion regarding Plaintiff’s First Amendment Petition
claim. It did so in light of Evans’s assertion of qualified immunity, and because it did not believe,
based on the record in this case, that Dallas County or Evans was aware that Plaintiff was asserting
a First Amendment Petition claim against Evans. On April 26, 2017, Evans moved for judgment on
Plaintiff’s First Amendment Petition claim.
Memorandum Opinion and Order - Page 7
On May 30, 2017, Plaintiff filed his Motion to Recuse, contending that his First Amendment
Petition claim is not new. Plaintiff makes a similar argument in response to Evans’s summary
judgment motion, contending that the facts alleged in his Complaint and Rule 7(a) Reply regarding
his equal protection claim also support a First Amendment Petition claim, and the same conduct
constitutes a denial of equal protection and violation of his First Amendment right to petition the
government. In addition to responding to Evans’s summary judgment arguments regarding his
remaining First Amendment Petition claim, Plaintiff contends that Evans’s refusal to hear his
grievance constituted a denial of equal protection and “violated [his] statutory grievance rights under
TEXAS GOVERNMENT CODE § 617.005 and DALLAS COUNTY CODE Ch. 86.” Pl.’s Summ.
J. Resp. 17-18. From this, it appears that Plaintiff may now be contending that he has additional
individual capacity claims remaining against Evans aside from his First Amendment Petition claim
that are not barred by qualified immunity. The court will address this issue and the parties’
arguments made with respect to Evans’s pending summary judgment by separate order.
As explained below, Plaintiff’s Motion for Recusal is based in part on the court’s statements
regarding Plaintiff’s assertion of a First Amendment Petition Claim; the court’s decision to allow
Evans to file a dispositive motion regarding this claim; and the court’s decision to sua sponte revisit
and vacate in part Judge Solis’s order denying Evans’s Motion for Judgment, based on qualified
immunity, to dismiss Plaintiff’s First Amendment free speech and retaliation claim.
Plaintiff’s Grounds for Seeking Recusal
Plaintiff moves for the recusal of the undersigned pursuant to “28 U.S.C. § 144 and/or 28
U.S.C. § 455.” Pl.’s Mot. 1. As grounds for recusal, Plaintiff expresses concern regarding the
undersigned’s ability to be impartial because of his prior employment history as Dallas City Attorney
Memorandum Opinion and Order - Page 8
and the likelihood that he previously supervised attorneys who made qualified immunity arguments
similar to those in this case. In addition, Plaintiff contends that the court’s decision to sua sponte
revisit Judge Solis’s December 1, 2015 order denying Evans’s Motion for Judgment as to his First
Amendment free speech and retaliation claim amounted to partiality and inappropriate advocacy on
behalf of Defendants. Plaintiff contends that it was not the court’s place to argue for either side or
to suggest potentially beneficial arguments that a party failed to make or were not addressed by
Plaintiff further asserts that the court’s reversal of Judge Solis’s order was “not unexpected,”
and this is the reason he noted in his response to the court’s sua sponte order that Evans had never
challenged his First Amendment Petition claim. Id. at 6. Plaintiff contends that the court’s
statement expressing surprise and dismay in response to Plaintiff’s assertion on February 2, 2107,
that he had a First Amendment Petition claim against Evans that had not been previously addressed
by Defendants demonstrates impartiality. Plaintiff nevertheless notes that the court’s adverse
ruling(s) is not the reason he filed the Motion to Recuse. Instead, Plaintiff indicates that his decision
to file the Motion to Recuse was prompted by the undersigned’s “prior, apparently full time
employment as a government lawyer, with a role of arguing for qualified immunity for government
employees, coupled with his advocacy on behalf of Defendant Evans in this case” is what prompted
the filing of the Motion to Recuse. Id. at 8.
Applicable Legal Standards
Plaintiff moves for recusal under subsections (a) and (b)(2) of section 455. Section 455(a)
“requires a federal judge to disqualify himself in any proceeding in which ‘his impartiality might be
Memorandum Opinion and Order - Page 9
reasonably questioned,’” whereas section 455(b)(2) requires a federal judge to disqualify himself
when, “in private practice he served as lawyer in the matter in controversy, or a lawyer with whom
he previously practiced law served during such association as a lawyer concerning the matter, or the
judge or such lawyer has been a material witness concerning it.” 28 U.S.C. § 455(a), (b)(2).
The test for recusal under section 455(a) is an objective one. IQ Prods. Co. v. Pennzoil
Prods. Co., 305 F.3d 368, 378 (5th Cir. 2002). Plaintiff must show that, “if a reasonable man knew
of all the circumstances, he would harbor doubts about the judge’s impartiality.” Id. (footnote
omitted); Republic of Panama v. American Tobacco Co., Inc., 265 F.3d 299, 302 (5th Cir. 2001).
“[R]eview should entail a careful consideration of context, that is, the entire course of judicial
proceedings, rather than isolated incidents.” Andrade v. Chojnacki, 338 F.3d 448, 455 (5th Cir.
2003). “[J]udicial rulings, routine trial administration efforts, and ordinary admonishments (whether
or not legally supportable) to counsel” are not valid bases for a motion to recuse for personal bias.
Liteky v. United States, 114 S. Ct. 1147, 1157 (1994) (“A judge’s ordinary efforts at courtroom
administration—even a stern and short-tempered judge’s ordinary efforts at courtroom
administration—remain immune [from establishing a bias].”). Likewise, “opinions formed by the
judge on the basis of facts introduced or events occurring during current or prior proceedings are not
grounds for a recusal motion unless they display a similar degree of favoritism or antagonism” that
would make fair judgment impossible. Id. The disqualification decision is within the “sound
discretion” of the judge. In re Deepwater Horizon, 824 F.3d 571, 579-80 (5th Cir. 2016).
Plaintiff also moves for recusal under section 144, which provides:
Whenever a party to any proceeding in a district court makes and files 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, such judge shall proceed no
Memorandum Opinion and Order - Page 10
further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten days before the beginning of the term at which the
proceeding is to be heard, or good cause shall be shown for failure to file it within such time.
A party may file only one such affidavit in any case. It shall be accompanied by a certificate
of counsel of record stating that it is made in good faith.
28 U.S.C. § 144. This provision applies only to charges of actual bias. Henderson v. Department
of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990). When a party files a section 144
motion, the judge must pass on the sufficiency of the affidavit but may not pass on the truth of the
affidavit’s allegations. Id. There are three requirements for a legally sufficient affidavit: “(1) the
facts must be material and stated with particularity; (2) the facts must be such that if true they would
convince a reasonable [person] that a bias exists; and (3) the facts must show the bias is personal,
as opposed to judicial, in nature.” Id.
In support of the Motion to Recuse, Plaintiff submitted an affidavit executed by his counsel
William J. Dunleavy. Section 144, however, requires that an affidavit be submitted by a party, and
the Fifth Circuit has held that “[a] court may not grant relief under § 144 if a party’s counsel instead
of the party executes an affidavit alleging personal bias or prejudice.” Pomeroy v. Merritt Plaza
Nursing Home, Inc., 760 F.2d 654, 659 (5th Cir. 1985) (per curiam). Moreover, the court disagrees
with Plaintiff’s assertion that his Motion to Recuse is timely, as he did not “exercise reasonable
diligence in filing an affidavit after discovering facts that show bias” as required by section 144, id.
at 658, and has not shown good cause for the delay in filing his Motion to Recuse. Texas Tech Univ.
v. Spiegelberg, No. 5:05-CV-0192-C, 2006 WL 3591606, at *1 (N.D. Tex. Dec. 11, 2006)
Memorandum Opinion and Order - Page 11
(explaining that section 144 “clearly puts the burden on the affiant of showing good cause for failure
to file in time” by establishing that he “did not have notice of the alleged disqualifying facts at the
time the case was assigned to the judge’s docket.”) (citation omitted); Travelers Ins. Co. v. Liljeberg
Enters., Inc., 38 F.3d 1404, 1410 (5th Cir. 1994) (“[O]ne seeking disqualification must do so at the
earliest moment after knowledge of the facts demonstrating the basis for such disqualification.”).
This case was assigned to the undersigned April 27, 2016, after Judge Solis retired. It is a
matter of public knowledge that the undersigned was appointed to the federal bench in 1998 and
previously served as the Dallas City Attorney. Plaintiff nevertheless waited more than one year after
the case was reassigned to the undersigned and two months after the court’s adverse ruling on the
parties’ prior summary judgment motions and Evans’s Motion for Judgment before filing his Motion
to Recuse. He did so even though he acknowledges in his Motion to Recuse that he and his counsel
“had reservations” about the assignment of the case to the undersigned in April 2016 because of the
undersigned’s “former employment as a government/employer lawyer, who was most recently the
Dallas City Attorney before his appointment to the bench.” Pl.’s Mot. 2.
Under Plaintiff’s theory, a person who served as a criminal defense attorney, or one who
served in a prosecutorial capacity, could never preside as a federal judge in a criminal case because
he or she would either be biased in favor of the defense or prosecution. There is no question that
persons who have served previously as criminal defense counsel or prosecutors can effectively and
fairly preside as federal judges over criminal cases. Plaintiff’s argument to the contrary is simply
nonsensical and not supported by apposite authority. Accordingly, for all of the above-stated
reasons, recusal is not justified or warranted under section 144.
Memorandum Opinion and Order - Page 12
Plaintiff’s contentions with respect to section 455 are similarly unavailing. The affidavit of
Mr. Dunleavy does not establish that the undersigned served as a lawyer or witness in the matter in
controversy or that a lawyer under his prior supervision at the City of Dallas served as a lawyer or
witness concerning the matter in controversy. Accordingly, section 455(b)(2) is inapplicable and
cannot serve as a basis for recusal. Further, as correctly noted by Plaintiff, the undersigned was
employed by the City of Dallas, not Dallas County, one of the Defendants in this case, and it has
been almost nineteen years since the undersigned worked for the City of Dallas as its City Attorney.
Moreover, it is well settled that a district court with jurisdiction over a case has inherent
authority to revisit, reverse, vacate, or modify any interlocutory order entered in the case “for any
reason it deems sufficient, even in the absence of new evidence or an intervening change in or
clarification of the substantive law.” See Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d
167, 185 (5th Cir. 1990) (rejecting the intervenor’s argument that it was “‘utterly “inexplicable’ how
a court could one day conclude that there are genuine issues of material fact and later, without the
benefit of any additional evidence, conclude to the contrary”), abrogated on other grounds by Little
v. Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994); McKethan v. Texas Farm Bureau, 996 F.2d 734,
738 n.6 (5th Cir. 1993) (approving district court’s sua sponte reconsideration at the close of the
plaintiff’s evidence of defendant’s motion for summary judgment); United States v. Horton, 622 F.2d
144, 148 (5th Cir. 1980) (concluding that a partial summary judgment “is not immutable and has no
res judicata effect”). For this reason and because the court determined that Judge Solis’s conclusion
Memorandum Opinion and Order - Page 13
that Plaintiff’s right to First Amendment free speech was clearly established did not comport with
relevant, binding authority, the court was well within its right to correct the error before entry of
While Plaintiff characterizes the court’s sua sponte decision to revisit Judge Solis’s ruling
as improper advocacy on behalf of Defendants, the issue of whether Plaintiff’s right to First
Amendment free speech was clearly established was before Judge Solis as a result of Defendant
Evan’s Motion for Judgment based on qualified immunity, but, as explained in the court’s January
26, 2017 order, an incorrect legal standard was applied in deciding the issue. Even if the issue had
not been raised as a result of Evans’s Motion for Judgment, the court has authority to enter judgment
sua sponte, as long as it provides the losing party with adequate notice and a reasonable opportunity
to respond, which was done here. Arkwright-Boston Mfrs. Mut. Ins. Co. v. Aries Marine Corp., 932
F.2d 442, 445 (5th Cir. 1991); Sayles v. Advanced Recovery Sys., Inc., No. 16-60640, 2017 WL
2872343, at *1 (5th Cir. July 6, 2017) (“[D]istrict courts are widely acknowledged to possess the
power to enter summary judgments sua sponte, so long as the losing party was on notice that she had
to come forward with all of her evidence.”) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 326
Plaintiff’s contention that the court’s bias is also demonstrated by its comments regarding
the timing or perceived newness of Plaintiff’s First Amendment Petition claim and decision to allow
Evans an opportunity to file a dispositive motion with respect to this claim fares no better. The court
does not have a “dog in this fight” as to whom prevails. It does, however, have inherent authority
to control its docket to ensure the efficient administration of the cases pending before it and prevent
undue delays in the disposition of pending cases. In re Stone, 986 F.2d 898, 902 (5th Cir. 1993)
Memorandum Opinion and Order - Page 14
(concluding that federal courts have inherent authority “to protect the efficient and orderly
administration of justice and those necessary to command respect for the court’s orders, judgments,
procedures, and authority.”); Prudhomme v. Teneco Oil Co., 955 F.2d 390, 392 (5th Cir. 1992) (“The
district court has broad discretion in the management of its docket and the trial of lawsuits pending
before it.”). Additionally, as previously noted, judicial admonishments to counsel, even if stern or
short-tempered in nature, or not legally supportable are insufficient to establish bias. Liteky, 114 S.
Ct. at 1157; Andrade, 338 F.3d at 455. Accordingly, Plaintiff has not established that recusal is
warranted or justified under section 455(a).
The court recognizes that there may be valid reasons to seek recusal or disqualification of a
judge, but Plaintiff’s Motion to Recuse presents no valid reasons for recusal or disqualification. The
court fully understands, and takes no exception, that a party may disagree with its legal rulings and
appeal them. That is a party’s right. The allegations and arguments that Plaintiff makes are not
supported by facts or the law and simply are “beyond the pale.” The motion is frivolous. The court
will not sanction Plaintiff this time for his misapprehension of the law; however, Plaintiff is warned
not to file any further motions that are frivolous or those that cause unnecessary delay and consume
scarce judicial resources. For the reasons herein stated, the court denies Plaintiff’s Motion to Recuse
(Doc. 63) under 28 U.S.C. § 144 or 28 U.S.C. §§ 455(a), (b)(2).
It is so ordered this 8th day of August, 2017.
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order - Page 15
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