Dierlam v. Obama et al

Filing 61

MEMORANDUM AND ORDER entered DENYING 60 MOTION for Chief Judge of SDTX to Hear or Rehear the Motion to Reassign the District Court Judge in this Case.(Signed by Chief Judge Lee H Rosenthal) Parties notified.(leddins, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

JOHN J. DIERLAM,
Plaintiff,
v.
DONALD TRUMP, IN HIS OFFICIAL
CAPACITY AS PRESIDENT OF THE
UNITED STATES, et al.,
Defendants.

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September 29, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-16-0307

MEMORANDUM AND ORDER DENYING PLAINTIFF’S MOTION TO REASSIGN

John Dierlam, representing himself, sued Donald Trump in his official capacity as President
of the United States, as well as others.

Dierlam challenged the constitutionality of the

implementation of the Affordable Care Act. (Docket Entry No. 1). The government moved to
dismiss, to which Dierlam responded and filed a first amended complaint, (Docket Entry Nos. 18,
27, 28), followed by another motion to dismiss and a response, (Docket Entry Nos. 37, 39). Before
the court ruled on the motion to dismiss, Dierlam also filed a motion for partial summary judgment
and a motion for preliminary injunction. (Docket Entry Nos. 43, 44). The government moved to
stay the briefing on these motions until after the court ruled on the government’s motion to dismiss
for lack of standing, lack of jurisdiction, and failure to state a claim. (Docket Entry No. 45). The
court granted the motion to stay, which Dierlam appealed. (Docket Entry No. 47). The Fifth Circuit
dismissed the appeal for lack of appellate jurisdiction. (Docket Entry No. 55). Dierlam states that
he has filed a petition for a writ of certiorari. (Docket Entry No. 60 at 3).
In the meantime, Dierlam has moved to have the case reassigned from Judge Hoyt. (Docket

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Entry No. 56). The government responded, (Docket Entry No. 57), and Dierlam replied to the
government’s response, (Docket Entry No. 58). Judge Hoyt has not yet ruled on the motion. In the
present motion, Dierlam asks the Chief Judge of the Southern District to grant the motion to
reassign. His motion to reassign the case is groundless.
Dierlam brings this motion under 28 U.S.C. §§ 144 and 455. 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. Section 455 provides:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or
personal knowledge of disputed evidentiary facts concerning the
proceeding.
28 U.S.C. § 455 (a)–(b). Dierlam has filed an affidavit to support his contention that Judge Hoyt
has a personal bias or prejudice against him. (Docket Entry No. 56)
A legally sufficient affidavit under § 144 requires: (1) material facts that are stated with
particularity; (2) the facts, if true, would convince a reasonable person that bias exists; and (3) the

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facts reveal that the alleged bias is personal, as opposed to judicial. Henderson v. Dept. of Public
Safety & Correc., 901 F.2d 1288, 1296 (5th Cir. 1990). “[T]he relevant inquiry is whether a
reasonable man, were he to know all the circumstances, would harbor doubts about the judge’s
impartiality.” Telles v. City of El Paso, 164 Fed. App’x 492, 496 (5th Cir. 2006). “Adverse judicial
rulings alone are generally insufficient to establish judicial bias.” Jackson v. Hochberg, 669 Fed.
App’x 274, 275 (5th Cir. 2016) (citing Liteky v. United States, 510 U.S. 540, 555 (1994)). Delays
in ruling do not show pervasive bias. See, e.g., Palmer v. Wyeth, No. 97-20291, 1998 U.S. App.
LEXIS 38943, at *8 (5th Cir. Nov. 9, 1998). “[O]pinions formed by the 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 unless they display deep-seated favoritism or
antagonism.” Andrade v. Chojnacki, 388 F.3d 448, 455 (5th Cir. 2003) (quoting Liteky, 510 U.S.
at 555).
Dierlam alleges that Judge Hoyt “displayed a deeper knowledge of the defenses of the
government” than of the plaintiff’s claims. (Docket Entry No. 60 at 4). This allegation is based on
a status conference in which Judge Hoyt “inquired about the purpose for amending the Original
Complaint” and the basis for the government’s motion to dismiss. (Docket Entry No. 56 at 8). This
exchange, and Judge Hoyt’s statement “you are not a woman,” gave Dierlam “the very distinct
impression” that Judge Hoyt was biased in favor of the government. (Docket Entry No. 56 at 8).
Dierlam bolsters this notion with comments from www.therobingroom.com, a website that invites
individuals to post what they think of specific judges. (Docket Entry No. 56 at 9). Second, Dierlam
alleges that Judge Hoyt exhibited bias and hostility against him in his rulings denying Dierlam’s
motions. (Docket Entry No. 60 at 4). Dierlam suggests that Judge Hoyt’s denial of Dierlam’s

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motion for excess pages was disparate treatment and that granting the government’s motion for a
stay was a strategy to delay Dierlam’s case and surreptitiously aid the government. (Docket Entry
No. 60 at 4). Finally, Dierlam points to the time it took Judge Hoyt to rule on Dierlam’s motions
as further evidence of bias. (Docket Entry No. 56 at 9).
None of Dierlam’s accusations shows bias, requires recusal, or justifies reassignment.
Dierlam is dissatisfied with Judge Hoyt’s rulings, thinks they should be issued faster, and questions
Judge Hoyt’s courtroom management. But nothing in this record provides any objective facts that
would lead a reasonable person to question the judge’s impartiality. The motion to reassign is
denied.
SIGNED on September 29, 2017, at Houston, Texas.

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Lee H. Rosenthal
Chief United States District Judge

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