Klayman v. Obama et al
Filing
48
MEMORANDUM OPINION AND ORDER denying 26 Emergency Motion for Hearing, denying 43 Motion Disqualification Pursuant to 28 U.S.C. § 144, overruling 9 Objection, and terming 44 Motion Supplement. (Ordered by Judge Sam A Lindsay on 10/12/2016) (ran)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LARRY KLAYMAN AND
DEMETRICK PENNIE,
Plaintiffs,
v.
PRESIDENT BARACK HUSSEIN
OBAMA, et al.,
Defendants.
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§
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§ Civil Action No. 3:16-CV-2010-L
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§
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§
MEMORANDUM OPINION AND ORDER
Before the court are Plaintiff Larry Klayman’s Opposition to Admission of Abdul Arif
Muhammad Pro Hac Vice (Doc. 9), filed August 17, 2016; Plaintiffs’ Motion for Emergency
Hearing Concerning Death and Other Threats Made Against Them and Related Issues and Requested
Relief (Doc. 26), filed September 22, 2016; Plaintiffs’ Motion to Recuse/Disqualify Judge Sam
Lindsay Under 28 U.S.C. § 144 (Doc. 43), filed October 6, 2016; and Supplement to Affidavit of
Demetrick Pennie in Support of Plaintiffs’ Motion to Recuse/Disqualify Judge Sam Lindsay Under
28 U.S.C. § 144 (Doc. 44), which was filed October 7, 2016, as a “motion.”
For the reasons herein explained, the court denies Plaintiffs’ Motion for Emergency Hearing
Concerning Death and Other Threats Made Against Them and Related Issues and Requested Relief
(Doc. 26); denies Plaintiffs’ Motion to Recuse/Disqualify Judge Sam Lindsay Under 28 U.S.C. §
144 (Doc. 43); and overrules Plaintiff Larry Klayman’s Opposition to Admission of Abdul Arif
Muhammad Pro Hac Vice (Doc. 9). Although the Supplement to Affidavit of Demetrick Pennie in
Support of Plaintiffs’ Motion to Recuse/Disqualify Judge Sam Lindsay Under 28 U.S.C. § 144 (Doc.
Memorandum Opinion and Order - Page 1
44) was filed as a “motion,” it is not a motion, and the clerk of the court is directed to term it so that
it no longer appears on the docket as a pending motion.
I.
Introduction
On July 9, 2016, Plaintiffs Sergeant Demetrick Pennie (“Pennie”), a police officer employed
by the City of Dallas Police Department, and his attorney Larry Klayman (“Klayman”)1 (collectively,
“Plaintiffs”) brought this action on behalf of themselves and “police officers and other law
enforcement persons of all races and ethnicities” against Defendants President Barack Huseein
Obama (“President Obama”); Eric H. Holder, Jr. (“Holder”); Louis Farrakhan (“Farrakhan”);
Reverend Al Sharpton (“Sharpton”); Rashad Turner; Patrice Cullors; Alicia Garza; Deray McKesson
(“McKesson”); Opal Tometi; the Nation of Islam; National Action Network; Black Lives Matter;
Johnetta Elzie; New Black Panthers Party; Malik Zulu Shabazz; George Soros; and Hillary Clinton
(collectively, “Defendants”). Pls.’ Compl. 2. On September 16, 2016, Plaintiffs filed an Amended
Complaint in which they assert actions against Defendants for alleged: (1) “Deprivation of Civil
Rights: Aiding and Abetting Murder” in violation of 42 U.S.C. § 1983; (2) “Conspiracy to Deprive
Plaintiffs of Civil Rights: Right to Life and Liberty” in violation of 42 U.S.C. § 1985; (3) “Fifth
Amendment Violation: Deprivation of Right to Life” in violation of “Biven v. VI Unknown Named
Agents of Federal Bureau of Narcotics”; (4) assault; (5) intentional infliction of emotional distress;
and (6) “Terrorist Promotion of Gang Activity under Florida Law” with respect to Klayman. Pls.’
Am. Compl. 57-65. For relief, Plaintiffs request:
1
Klayman is a former federal prosecutor and the “high profile” founder of Freedom Watch and Judicial Watch.
Pls.’ Am. Compl. 9. According to Plaintiffs’ pleadings, the mission of these entities is to “enforce the rule of law and
fight against racism, public corruption, and to further civil rights and equality for all persons under the U.S.
Constitution.” Id. at 8. Plaintiffs assert that “Klayman has been highly visible and active in defending police, other law
enforcement officials, Jews, Christians and Israel and opposing Defendants’ efforts to stir up racial, ethnic and religious
conflict to suit their agendas in every area of American life in court and in public.” Id.
Memorandum Opinion and Order - Page 2
that judgment be entered against Defendants, each and every one of them, jointly and
severally, for compensatory and actual damages as a result of their demonstrable
physical and emotional injury to Plaintiffs, punitive damages because of Defendants’
callous and reckless indifference and malicious acts, and attorney[’]s fees, costs, an
award in excess of $500,000,000.00 or $1,500,000,000.00 in trebled damages where
appropriate, punitive damages, and such other relief the Court may deem just and
proper.
Id. at 65. The essence of Plaintiffs’ claims is that Defendants have made public statements that have
incited criminal activity by others across the country, including riots, murders, and threats of death
and bodily injury. According to Plaintiffs’ Amended Complaint, Pennie and Klayman were not the
target of any of the alleged violence against law enforcement before filing this lawsuit, but they have
received threats as a result of filing this lawsuit.
A majority of Defendants in this case has not yet been served. Defendants President Obama,
Holder, Farrakhan, Sharpton, and McKesson have all filed motions to dismiss Plaintiffs’ claims and
this action for lack of jurisdiction (personal and subject matter jurisdiction) and failure to state
claims upon which relief can be granted.
On September 22, 2016, Plaintiffs requested that the court conduct an emergency hearing on
September 27, 2016, to address the threats made against them, the first of which occurred on July
14, 2016. Plaintiffs believe that Defendants are behind the threats or that their public speech has
motivated the persons who made the threats. Plaintiffs, therefore, request that the court conduct an
evidentiary hearing and allow them to conduct discovery to confirm whether their suspicions in this
regard are correct. In their motion for an emergency hearing and subsequent motion for recusal or
disqualification filed on October 6, 2016, Plaintiffs contend that the case should be reassigned to
Memorandum Opinion and Order - Page 3
another judge in light of the undersigned’s appointment to the federal bench by former President Bill
Clinton (“former President Clinton”).
Plaintiffs further assert in their motion for recusal that the court’s timing in ruling on various
motions filed to date by the parties is an indication of the court’s bias against Plaintiffs or favoritism
of Defendants. In sum, Plaintiffs contend that the court has not ruled quickly enough on a motion
for continuance they filed to a motion to dismiss filed by Farrakhan; that the court ruled too quickly
in granting a pro hac vice application filed by Farrakhan’s attorney without giving Plaintiffs an
opportunity to object; that the court has delayed in addressing their objection to the pro hac vice
application, as well as their request for an emergency hearing. Plaintiffs’ motions for an emergency
hearing and recusal or disqualification are opposed. Because Plaintiffs’ motions for an emergency
hearing and recusal or disqualification both set forth reasons why Plaintiffs believe that the case
should be reassigned to another judge, the court addresses them first before discussing Plaintiffs’
objection to the pro hac vice application.
II.
Plaintiffs’ Motion for Emergency Hearing (Doc. 26) and Motion to Recuse and
Disqualify Judge Sam Lindsay Under 28 U.S.C. § 144 (Doc. 43)
Plaintiffs filed their motion for an emergency hearing on Thursday, September 22, 2016, at
8:44 p.m., requesting that the court conduct a hearing the following week on Tuesday, September
27, 2016, before Defendants’ deadline to respond to the motion. Plaintiffs assert that an emergency
evidentiary hearing is necessary “to determine the appropriate course of action” regarding alleged
“death and other threats of physical violence made against them” and their families. Pls.’ Mot. 1,
6. Plaintiffs assert that an emergency hearing is also necessary to address related issues concerning
“whether discovery must be ordered and an evidentiary hearing held to determine if any or all of the
Defendants are behind these threats, and if so if appropriate proceedings must be commenced to
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remedy this, as well as whether this case should be assigned to another judge in this district given
the possible appearance of partiality under these grave circumstances.” Id. at 6. Plaintiffs contend
in their motion for emergency hearing, as well as their motion for recusal or disqualification, that the
case should be reassigned to another judge because of the undersigned’s appointment to the federal
bench by former President Clinton. In their motion to recuse the undersigned, Plaintiffs also contend
that the court “has shown a pattern of inherent, deep[-]seated favoritism for Defendants” or is
reluctant to rule on the pending motions and issues in this case because of its alleged affiliation with
Bill and Hillary Clinton or fear of Defendants Nation of Islam, Farrakhan, and the New Black
Panthers Party.
In support of their Motion for Emergency Hearing, Plaintiffs contend as follows:
Given the recent deaths of Dallas police officers and riots around the nation, currently
in Charlotte, North, Carolina, and the incitement to violence and actual killings and
assaults and batteries as alleged in the Amended Complaint, all of which has been
documented with hard facts, it would appear that Defendants are directly or indirectly
responsible for the deadly threats against Plaintiffs, one of whom is a Sergeant of the
DPD and the other an officer of this Court. Threats against them thus constitute
crimes pursuant to 18 U.S.C. §115(a) . . . There are equivalent Texas statutes
concerning threats to officers of the court and law enforcement. These threats must
be taken seriously before Plaintiff Pennie and his counsel are killed or seriously
physically harmed.
Recently, Defendant Hillary Clinton, in a transparent attempt to garner the
votes of African-Americans in the upcoming Presidential election, blamed, and thus
furthered violence against white people in general for recent police shootings, stating,
“[m]aybe I can, by speaking directly to white people, say look, this is not who
we are. We have got to do everything possible to improve policing, to go right
at implicit bias.” She then took to twitter to make further inflammatory statements
against law enforcement officers following the shootings of African-Americans in
Tulsa, Oklahoma and Charlotte, North Carolina, pre-judging for her political
purposes before all the facts are known. Further, Defendant Hillary Clinton
demagogued, “[a]nother unarmed Black man was shot in a police incident. This
should be intolerable. We have so much work to do.” Furthermore, Defendant Hillary
Clinton said, “Keith Lamont Scott. Terence Crutcher. Too many others. This has got
to end.” Defendants Hillary Clinton and Obama have made no genuine or real
attempt to try to dissuade the perpetrators of the violent looting and rioting that has
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erupted, and instead chosen to stoke the flames and incite violence with their words
and inaction, respectively.
So too have the other Defendants, who have made direct threats to kill and
cause serious bodily harm to Plaintiffs and those who do not agree with their radical
Black Muslim violent beliefs and actions. As detailed in the Amended Complaint
Defendant Farrakhan[,] and the Nation of Islam are directly responsible for the recent
police deaths and severe bodily injuries that occurred in Dallas. In response to the
recent Charlotte riots, Defendant Nation of Islam, though its spokesperson B.J.
Murphy, have explicitly urged the riots to continue, stating, “we’re not telling our
brothers and sisters to stop . . . when we ain’t getting no justice.” Defendant
Sharpton, like Defendant Farrakhan[,] has called for the killing of law enforcement
officers, also set forth and documented in the Amended Complaint. At one of
Defendant Sharpton’s rallies, protesters chanted, “What do we want? Dead cops!
When do we want it! Now!” Defendant Sharpton himself has said, “I believe in
offing the pigs. Well they got pigs out here. You ain’t offed one of them. What
I believe in, I do. I’ll off the man. Well off him. Plenty of crackers walking
around here tonight.” And, as these threats demonstrate, Defendant the New Black
Panthers Party and Black Lives Matter and their accomplices have also leveled these
deadly threats. For instance, as set forth in the Amended Complaint, Black Lives
Matter protesters chanted, “Pigs in a blanket, fry em’ like bacon.” Furthermore,
threats levied personally against Plaintiffs are set forth in detail below. More threats
are coming in by the day as well.
Threats against Klayman[:]
Andrew Bennett—“[...] you cracker [...] you broke with the black Panthers and
the black lives matter and all black people in this country. God probably alone.
You should be worried(?) about the say that you [sic] whole goddamn family.”
Threats against Pennie:
Walter Hargain—“—Future Headline—Sgt. Demetrick Pennie was found in a
hotel room, shortly after filing a lawsuit against Hillary Clinton, with 15
selfinflicted gunshot wounds to his back.” Keith Arrington - “Eat a d**k pig”
“Will Slapyou”—“This NIGGA HERE!!!!!! WTF???? REALLY. . . . No
REALLY!!!!! If anyone would like to talk to Sgt Demetrick Pennie he is in the
property room at [ADDRESS] [PHONE NUMBER] He works days.” “Sgt.
‘House Nigger”, D. Pennie, why are you suing people who are trying to stop
Klansman police from murdering black men, women, and children. I don’t hear
you speaking out about this. The House Nigger’s sole reason for living is to
appease the ‘massa.’ Not only are you a House Nigger, but you are also a
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traitor! You do know what happens to traitors, don’t you? Stop this stupid
lawsuit now or you will be dealt with!”
Brian Thornton—“Oh yeah, I can also say ‘whoever kills this cop is a national
hero’ not an offense. Look at who supports you, guy who thinks the ‘others’ and
‘theys’ (your supporters words, not racist at all) are trying to start a race war.
I like the part where you are doing post-grad work. I’ve met plenty of
post-doctorates that were completely bonkers. Look at my posts as a teaching
moment from someone who has taught college dealing with Con Law, Texas
Judiciary, and political science. You are very welcome, no charge (for either of
us ;) – see what I did there?).
Counsel for each and every Defendant who has appeared in this matter have
unprofessionally chosen to oppose Plaintiffs’ emergency motion. The fact that they
oppose clearly underscores the fact that Defendants have furthered, directly or
indirectly, the death and other threats of and serious bodily harm to Plaintiffs and
those who oppose them. Otherwise, there would be no reason to oppose such an
emergency hearing, where lives are at stake as a result of Defendants’ conduct.
Plaintiffs have great respect for this Court, but have concerns that this Court
was nominated to the federal bench by former President Bill Clinton, who Defendant
Hillary Clinton has touted will be a part of her administration should she win the
presidency. Thus, there can at a minimum be an appearance of partiality in this Court
administering to this case. As reported by the New York Times:
In an election year when Bill Clinton’s policies and personal
indiscretions have faced intense scrutiny, Hillary Clinton is beginning
to shape the role her husband would play in her administration,
zeroing in on economic growth and job creation as crucial missions
for the former president.
Mrs. Clinton told voters in Kentucky on Sunday that Mr.
Clinton would be “in charge of revitalizing the economy, because,
you know, he knows how to do it,” especially “in places like coal
country and inner cities.” On a campaign swing this month
before the West Virginia primary, she said her husband has “got
to come out of retirement and be in charge” of creating jobs.
She has not provided details about how a former president
would fit into a policy-making role in his wife’s administration, a
position never before seen in American politics. (emphasis added)[.]
For this reason, and with this great respect, Plaintiffs simply ask that the
Court consider having this case reassigned to another judge who was not nominated
by President Clinton, the husband of Defendant Hillary Clinton, and a future integral
Memorandum Opinion and Order - Page 7
part of her administration should she win the presidency. The stakes herein are too
great for this appearance of partiality to exist given the stakes involved to Plaintiffs
and the rest of the nation.
Id. at 1-5 (footnotes omitted). The quotations above are from what appear to be social media posts,
which Plaintiffs attached to their motion for an emergency hearing. It is unclear when the posts were
made. In addition, Plaintiffs’ evidence also includes a visual voice mail dated July 14, 2016, which
references the “you cracker” comment. Also attached to Plaintiffs’ motion for an emergency hearing
are (1) a copy of an online article regarding Plaintiffs’ filing of this lawsuit and their allegations in
the lawsuit that they have received death threats and notified the Federal Bureau of Investigation of
such threats; and (2) a copy of an unsigned letter sent to Pennie, postmarked September 19, 2016.
Plaintiffs appear to assert that the person who uses the anonymous online username of “Will
Slapyou” sent the September 19 letter to Pennie. Because there is overlap in the relief requested by
Plaintiffs in their motion for an emergency hearing and their subsequently filed motion for recusal
or disqualification under 28 U.S.C. § 144, the court addresses them together in this section before
discussing Plaintiffs’ objections to the pro hac vice application filed by Farrakhan’s attorney.
A.
Request for Emergency Hearing
As noted, Plaintiffs first requested an emergency hearing late in the evening on September
22, 2016, to address “whether discovery must be ordered and an evidentiary hearing held to
determine if any or all of the Defendants are behind these threats, and if so if appropriate proceedings
must be commenced to remedy this, as well as whether this case should be assigned to another judge
in this district given the possible appearance of partiality under these grave circumstances.” Id. at
6. Plaintiffs’ request for a hearing was made six days after they filed their Amended Complaint.
Like the original Complaint, the Amended Complaint was followed by a number of motions to
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dismiss and strike and objections by Defendants who have asserted jurisdictional challenges based
on lack of subject matter and personal jurisdiction.
A court must address a motion to dismiss for lack jurisdiction before considering other
challenges or reaching the merits of any case because, without jurisdiction, the court has no power
to entertain the case. Union Planters Bank Nat’l Ass’n v. Salih, 369 F.3d 457, 460 (5th Cir. 2004)
(“[F]ederal courts are duty-bound to examine the basis of subject matter jurisdiction sua sponte, even
on appeal.”); Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“Article III generally
requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers
the merits of a case.”); Moran v. Kingdom of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994) (same).
Plaintiffs’ request to conduct discovery and have an evidentiary hearing to determine whether
any Defendants are responsible for the threats they received after filing suit implicates the merits of
their claims. Before the court can address such a request, it must determine whether it has subject
matter jurisdiction over the action. See id. It must also address the motions to dismiss for lack of
personal jurisdiction. The court is reviewing the jurisdictional arguments raised in the various
motions to dismiss filed by Defendants and will issue a decision in due time after the motions are
ripe.
Further, discovery on the merits should not take place until the court has ruled on the
jurisdictional issues. The only exception would be if discovery is necessary to determine whether
the court has subject matter or personal jurisdiction. Once jurisdiction is established, discovery will
be conducted in this case in accordance with the Federal Rules of Civil Procedure and any
scheduling order entered by the court. See Fed. R. Civ. P. 16 and 26. District courts have broad
discretion in managing their dockets, and this case will be no different in that regard. In re Stone,
986 F.2d 898, 902 (5th Cir.1993) (concluding that federal courts have inherent authority “to protect
Memorandum Opinion and Order - Page 9
the efficient and orderly administration of justice and . . . to command respect for [its] 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.”). While the court makes an effort to accommodate the parties when
possible in scheduling case deadlines, hearings, and trials, it cannot always arrange its busy civil and
criminal dockets around the parties’ or their attorneys’ schedules, particularly when, as here, litigants
wait until the eleventh hour to seek relief from the court without providing any explanation for their
delay.
The court does not expect the parties to agree in every respect regarding matters that arise
in litigation, but the court and this district require parties and their counsel to conduct themselves
with some level of civility. In light of the contentious and acrimonious nature of this litigation and
the morass that has ensued,2 the court instructs the parties and counsel to be mindful of Dondi
Properties Corporation v. Commerce Savings & Loan Association, 121 F.R.D. 284 (N.D. Tex.
1988), and its far-reaching implications. Attorneys can be zealous advocates on behalf of their clients
without being unprofessional.
Accordingly, for all of these reasons, the court determines that Plaintiffs are not entitled to
an emergency evidentiary hearing and expedited discovery and denies Plaintiffs’ Motion for
Emergency Hearing Concerning Death and Other Threats Made Against Them and Related Issues
and Requested Relief (Doc. 26).
2
Within the short time that this case has been pending, there are already forty-seven entries on the docket,
seventeen of which are pending motions or objections. While the court was in the process of drafting this order, Plaintiffs
electronically filed as a motion a supplement to the affidavit of Pennie filed in support of their Motion to
Recuse/Disqualify the undersigned.
Memorandum Opinion and Order - Page 10
B.
Request for Recusal or Disqualification and Reassignment of Case
On October 6, 2016, Plaintiffs moved, pursuant 28 U.S.C. § 144, for recusal or
disqualification of the undersigned and reassignment of this case to another district court judge. In
support of their motion, Plaintiffs submitted an original affidavit, which was subsequently
supplemented on October 7, 2016. After carefully considering the motion, affidavits, and applicable
law, the court determines that the motion should be denied.3
1.
Applicable Legal Standard
Section 144 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 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. “The standard for determining whether a judge should disqualify himself under §
455 is whether a reasonable person knowing all the facts would conclude that the judge’s impartiality
3
As noted, Plaintiffs first requested that the case be reassigned to another judge in their Motion for Emergency
Hearing. Plaintiffs did not specify in that motion whether they were seeking reassignment under section 28 U.S.C. § 144
or 28 U.S.C. § 455, and the only basis urged for the requested reassignment was the alleged appearance of partiality as
a result of the undersigned’s appointment by former President Clinton, and President Clinton’s affiliation with Defendant
Hillary Clinton and his perceived role in Hillary Clinton’s administration if she is elected as president of the United
States. Plaintiffs’ Motion for Emergency Hearing was not supported by an affidavit as required by section 28 U.S.C.
§ 144, and the foregoing assertion is based on Plaintiffs’ unsupported speculation, supposition, and opinion regarding
the undersigned’s ability to be impartial, which, as herein explained, is insufficient for recusal or disqualification under
either section 28 U.S.C. § 144 or 28 U.S.C. § 455. Accordingly, Plaintiffs’ initial request for the court to reassign this
case is denied.
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might reasonably be questioned.” Hepperle v. Johnston, 590 F.2d 609, 614 (5th Cir. 1979).
“[D]isqualification should follow if the reasonable man, were he to know all the circumstances,
would harbor doubts about the judge’s impartiality.” Health Servs. Acquisition v. Liljeberg, 796
F.2d 796, 800 (5th Cir. 1986) (citation omitted).
Although section 144 refers to assignment to another judge, the presiding judge may transfer
the matter to another judge for decision or decide it himself. Doddy v. Oxy USA, Inc., 101 F.3d 448,
458 n.7 (5th Cir. 1996) (citations omitted). Further, there is no “negative inference that can be drawn
from the fact that the judge to whom a motion to recuse is directed rules on the motion.” In re
Corrugated Container Antitrust Litig., 614 F.2d 958, 963 n. 9 (5th Cir. 1980). Pursuant to section
144, a judge must reassign a case to another judge only “when a party 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.” United States v. Scroggins, 485 F.3d 824, 829
n.19 (5th Cir. 2007) (internal quotations omitted). While the language of section 144 appears to
require immediate reassignment, it is the presiding judge’s responsibility to assess the timeliness and
legal sufficiency of the affidavit:
On its face [section 144] appears to require automatic disqualification upon filing of
a proper affidavit. It has not been read this way. Instead, courts have held that the
judge has not only the right but the duty to examine the affidavit and certificate to
determine whether they are timely and legally sufficient. The affidavit and certificate
are strictly construed against the party seeking disqualification. Only if the
documents meet this strict scrutiny does recusal become mandatory.
3 Charles A. Wright, et al., Fed. Prac. & Proc. § 3551 (3d ed.) (footnotes omitted).
The court “must pass on the legal sufficiency of the affidavit, but may not pass on the truth
of the matter alleged.” Henderson v. Department of Public Safety and Corrections, 901 F.2d 1288,
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1296 (5th Cir. 1990) (citation and internal quotation marks omitted). 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. Considering the
applicable legal standard, the court concludes that Plaintiffs’ motion and affidavit are insufficient
for a number of reasons to support recusal or disqualification.
2.
Section 144 Analysis
Pennie states in his affidavit that he believes that the undersigned cannot be impartial because
the undersigned was appointed by former President Clinton, who is the husband of Defendant Hillary
Clinton in this case. This and similar arguments premised on a federal judge’s appointment to the
bench by a president and alleged political affiliation have been rejected by courts. See, e.g.,
Armenian Assembly of Am., Inc. v. Cafesjian, 783 F. Supp. 2d 78, 93 (D.D.C. 2011) (“The case law
is clear that recusal is not warranted where a judge is alleged to be biased based solely on political
connections to the President who appointed [him].”); Klayman v. Judicial Watch, Inc., 744 F. Supp.
2d 264, 277 (D.D.C. 2010) (“[T]hat the undersigned was appointed to the federal bench by former
President Clinton, of whom Klayman has allegedly been critical in the past, does not warrant or
justify disqualification.”) (citing Klayman v. Judicial Watch, Inc., 628 F. Supp.2d 98, 110-11
(D.D.C. 2009) (“[I]t is clear that the mere fact that the undersigned was appointed by the former
Clinton administration—where former President Clinton is neither a party to or otherwise involved
with this lawsuit—does not warrant or require recusal in the instant case.”); Karim–Panahi v. United
States Congress, 105 F. App’x 270, 274-75 (D.C. Cir. 2004) (affirming lower court’s denial of
motion for recusal based on allegations that the judge was “biased because of her ‘political-religious
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connections’ and her alleged loyalty to those who selected, confirmed and appointed her”). Even
when the President responsible for nominating the judge is actually a party to the litigation, courts
have held that recusal is not warranted. See In re Executive Office of President, 215 F.3d 25, 25
(D.C. Cir. 2000); Scott v. Perry, Case No. A-15-CA-11-SS, 2015 WL 868995, at *1 (W.D. Tex. Feb.
27, 2015) (“Having reviewed the Complaint and the file as a whole, the Court can discern absolutely
no meritorious basis upon which former President George W. Bush could be named as a defendant
in this lawsuit. Moreover, even were Scott to name former President Bush as a defendant, a federal
judge need not recuse himself from every case involving the President who appointed him.”).
Based on the reasoning in these cases, the court concludes that mere appointment by a
particular president is insufficient to convince a reasonable person that personal bias or prejudice
exists. Even if former President Clinton were a party to this case, Pennie’s belief regarding the
attenuated connection between the court, the former president, and his wife’s political speeches is
based entirely on unsupported belief, conjecture, and speculation. Plaintiffs also suggest in their
Motion that the court cannot be impartial because its “fellow African American judges and Texas
Representatives have taken to attacking Plaintiff over [filing] this suit—going as far as to call
Plaintiff Pennie essentially a clueless slave—for asserting his rights in this action.” Pls.’ Mot. 6-7
(Doc. 43). Plaintiffs, however, have presented absolutely no facts to support this belief and
conclusory assertion, and there is nothing in Pennie’s affidavit in this regard. As a matter of law,
statements in an affidavit “based on ‘information and belief’ are legally insufficient [to support
recusal of a judge].” Henderson, 901 F.2d at 1296. Such affidavits are not based on the affiant’s
personal knowledge. Id.
Memorandum Opinion and Order - Page 14
Pennie also states in his affidavits that he believes that the court’s action or inaction in the
case thus far indicates a bias in favor of Defendants and against Plaintiffs that warrants recusal. For
example, in his one-page supplemental affidavit, Pennie refers to and attaches an October 7, 2016
article regarding the shooting of a police officer in Los Angeles. Pennie states, “This is further
evidence that law enforcement officers are indeed being killed or seriously wounded every day, and
I am in an elevated risk as a result of filing this litigation. This Court’s inaction in the fact of this
danger gives rise to a strong evidentiary inference of favoritism and bias for Defendants, and recusal
is therefore necessary.” Pennie Supp. Aff. 1. The essence of Plaintiffs’ contention is that the court
has not acted quickly enough in ruling on their motions seeking an extension of time to respond to
a motion to dismiss and an emergency hearing, whereas, the court quickly granted an application
filed by Defendant Farrakhan’s attorney to appear pro hac vice before Plaintiffs had an opportunity
to objection to the application. Plaintiffs assert that, as of the filing of their motion to recuse, it has
been almost 41 days since they filed their routine motion for extension of time. Plaintiffs further
assert that the court has yet to rule on their objection to the pro hac vice application. Once again, this
statement is an insufficient basis for recusal, as it is based solely on Pennie’s belief and is not
supported by his personal knowledge. Henderson, 901 F.2d at 1296.
Moreover, unlike the types of motions filed by Plaintiffs, the Northern District of Texas’s
Local Civil Rules do not require parties to file a certificate of conference in support of such
applications. See Local Civ. R. 83.7. Thus, there would have been no way for the court to know in
advance that Plaintiffs intended to object to the application submitted by Farrakhans’ attorney.
Further, pro hac vice applications are generally granted, as a matter of course without objection in
this district, unless there is a legitimate reason for the court to deny an application, such as prior
Memorandum Opinion and Order - Page 15
disciplinary action taken against an attorney that precludes him or her from practicing in this district.
Frankly, in more than eighteen years on the bench, the court cannot recall any objection made by
opposing counsel to a pro hac vice application. Plaintiffs’ personal opinion of the Nation of Islam
and their contention that the court should have denied the application and required “Defendant
Farrakhan [to] retain an attorney [who] is not affiliated with the Nation of Islam,” Pls.’ Obj. 3, are
not valid bases for denying a pro hac vice application.
On the other hand, certificates of conference are required under the court’s Northern District
of Texas’s Local Civil Rules for the types of motions filed by Plaintiffs, and Plaintiffs’ motions for
extension of time and an emergency hearing both indicate that they are opposed. Consequently, the
court could not rule on them before giving Defendants an opportunity to respond and Plaintiffs an
opportunity to file a reply. Local Civ. R. 7.1. Because the briefing process for an opposed motion
generally takes more than one month and the court’s orders on such motions are usually more
detailed, the court rarely rules on disputed motions within thirty days or less, even when they are
routine motions for extension of time.
The court currently has a total of over 330 civil cases and 90 criminal cases that it is
overseeing at this time and cannot realistically devote all of its scarce judicial resources to this case
when it has much older cases and motions that also need its attention. For these reasons, it is risky
for a party to wait until the eve of a deadline before seeking an extension of time. Here, Plaintiffs’
response to Farrakhan’s motion to dismiss was due Monday, August 29, 2016, but they waited until
7 p.m. on Friday, August 26, 2016, before filing their opposed motion to extend their response
Memorandum Opinion and Order - Page 16
deadline, so it would not have been possible for the court to rule on the motion before Plaintiffs’
response deadline.
Moreover, fourteen business days later, Plaintiffs filed an Amended Complaint, which in
effect mooted the motions to dismiss filed by Defendants, as well as Plaintiffs’ motion for an
extension of time to respond to those motions.4 Plaintiffs’ decision to amend their pleadings also
delayed the resolution of their motion for emergency hearing because, as previously explained, the
original and subsequently filed motions to dismiss include jurisdictional issues that must be decided
first after full briefing by the parties. To date, the briefing on the motions to dismiss the Amended
Complaint is not yet ripe.
As with their motion for extension of time, Plaintiffs similarly waited until the eleventh hour
to file their motion for emergency hearing late on a Thursday evening, September 22, 2016, at 8:44
p.m. Plaintiffs requested that the court conduct a hearing on their motion the following week on
Tuesday, September 27, 2016, “to determine the appropriate course of action” regarding alleged
“death and other threats of physical violence made against them” and their families. Pls.’ Mot. 1, 6.
Thus, Plaintiffs requested an emergency hearing before Defendants had an opportunity to respond
to their opposed motion. According to Plaintiffs’ own evidence, however, the first of these alleged
threats was received ten weeks earlier on July 14, 2016. Plaintiffs, nevertheless, waited to file their
motion and provided no explanation for the sudden urgency but still expected the court to schedule
and conduct a hearing with only two business days’ notice. Regardless, Pennie’s affidavits and
4
Normally, the filing of an amended complaint will moot motions to dismiss the original complaint. The court
understands that certain Defendants have moved to strike the Amended Complaint as untimely. The court will address
the motions that pertain to Plaintiffs’ Amended Complaint in a separate order, including the motions to strike the
Amended Complaint.
Memorandum Opinion and Order - Page 17
Plaintiffs’ assertions about the court acting too fast in some instances and not fast enough in other
instances are insufficient to justify recusal because Plaintiffs’ belief that the court’s action or inaction
is rooted in bias relates to judicial dispositions rather than bias that is personal in nature, and
Plaintiffs have presented no evidence to support their conclusory assertion and unsupported belief
that the court’s management of this case evinces personal bias. Henderson, 901 F.2d at 1296.
Plaintiffs’ motion for recusal or disqualification also fails because it is untimely to the extent
it is based on the court’s appointment to the federal bench by former President Clinton. “[O]ne
seeking disqualification must do so at the earliest moment after knowledge of the facts
demonstrating the basis for such disqualification.” Travelers Ins. Co. v. Liljeberg Enters., Inc., 38
F.3d 1404, 1410 (5th Cir. 1994). It is a matter of public knowledge that the court was appointed in
1998 to the federal bench by former President Clinton, and Pennie’s affidavits contain no facts from
which the court can conclude that he was not aware of this fact when the case was filed. Plaintiffs,
nevertheless, waited more than two months before raising this concern for the first time in the
motion for emergency hearing. As already noted, Plaintiffs also waited more than two months before
first seeking reassignment of the case after the first death threat, although they contend that the court
has intentionally ignored this and other alleged threats because of alleged bias stemming from the
court’s appointment by former President Clinton or other unspecified affiliations. Plaintiffs’ motion
and requests for recusal or disqualification based on alleged bias are, therefore, untimely.
As a final matter, the courts also notes that, while Plaintiffs’ motion is accompanied by a
certificate of counsel by Mr. Klayman, as Plaintiffs’ counsel of record, that states, “I hereby certify
that this Motion, made pursuant to 28 U.S.C. § 144, is being made in good faith,” the certificate does
not state that Pennie’s affidavits are made in good faith as required by section 144. 28 U.S.C. § 144
Memorandum Opinion and Order - Page 18
(“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.”). Further, Pennie’s second affidavit violates
section 144, which limits a party to filing only one affidavit in support of recusal. See id.; see also
United States v. Merkt, 794 F.2d 950, 961 (5th Cir. 1986) (“[Movant’s] affidavit violates the one
affidavit rule . . . and need not be considered”). Even if the court considered the supplemental
affidavit, it is legally insufficient to require the court’s recusal for the same reasons his original
affidavit is inadequate, as it is based on his unsupported opinions, conclusions, and speculation. See
id.
In sum, Sergeant Pennie’s affidavits are riddled with his subjective beliefs, conjecture,
supposition, and unsupported conclusory allegations, and, thus, are not based on personal
knowledge. Henderson, 901 F.2d at 1296. As such, the affidavits are woefully inadequate, as a
matter of law, and cannot serve as a basis for recusal or disqualification of the undersigned. See id.
For this reason and all of the other reasons mentioned, the court denies Plaintiffs’ Motion to
Recuse/Disqualify Judge Sam Lindsay Under 28 U.S.C. § 144 (Doc. 43).
III.
Plaintiff Larry Klayman’s Objection to Pro Hac Vice Application
For the reasons explained, the court overrules Plaintiff Larry Klayman’s Opposition to
Admission of Abdul Arif Muhammad Pro Hac Vice Application (Doc. 9). Further, the court
determines that Plaintiffs have suffered no legal prejudice as a result of it granting the application
before Plaintiffs had an opportunity to respond or object to the application.
IV.
Conclusion
For the reasons stated, the court denies Plaintiffs’ Motion for Emergency Hearing
Concerning Death and Other Threats Made Against Them and Related Issues and Requested Relief
Memorandum Opinion and Order - Page 19
(Doc. 26); denies Plaintiffs’ Motion to Recuse/Disqualify Judge Sam Lindsay Under 28 U.S.C. §
144 (Doc. 43); and overrules Plaintiff Larry Klayman’s Opposition to Admission of Abdul Arif
Muhammad Pro Hac Vice (Doc. 9). Although the Supplement to Affidavit of Demetrick Pennie in
Support of Plaintiffs’ Motion to Recuse/Disqualify Judge Sam Lindsay Under 28 U.S.C. § 144 (Doc.
44) was filed as a “motion,” it is not a motion, and the clerk is directed to term it so that it no longer
appears on the docket as a pending motion.
It is so ordered this 12th day of October, 2016.
_________________________________
Sam A. Lindsay
United States District Judge
Memorandum Opinion and Order - Page 20
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