Deutsh v. La Tierra De Simmons Familia Ltd.
Filing
79
ORDER DENYING 78 Motion for Recusal. The hearing set before Judge Lane on Tuesday, September 13, 2016, at 9:00 a.m. may proceed. Signed by Judge Robert Pitman. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JON R. DEUTSCH,
Plaintiff,
v.
LA TIERRA DE SIMMONS
FAMILIA LTD.,
Defendant.
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1:15-CV-901-RP
ORDER
Before the Court in the above-entitled action is Plaintiff Jon R. Deutsch’s Opposed Motion
to Recuse Magistrate, (Dkt. 78), which requests that United States Magistrate Judge Mark Lane be
disqualified from any further proceedings in this action due to his impartiality. See 28 U.S.C. § 455(a).
In the motion, Plaintiff asserts that Judge Lane has a personal bias and prejudice against Plaintiff,
Plaintiff’s counsel, and the subject matter of this suit. Judge Lane has ordered Plaintiff and Plaintiff’s
counsel to appear for an evidentiary hearing to show cause as to why the Court should not impose
sanctions. (Dkt. 68). That hearing is set for Tuesday, September 13, 2016, at 9:00 a.m. (Id.).
In the United States District Court for the Western District of Texas, Austin Division,
Plaintiff has commenced approximately 385 separate lawsuits against individuals and business
entities alleging violations of the Americans with Disabilities Act. See 42 U.S.C. §§ 12181–12189. In
several of these actions, the Court has referred pretrial matters to Judge Lane for disposition.
See 28 U.S.C. § 636(b)(1)(A). In this case and others, Plaintiff has filed a Notice of Non-Consent to
Magistrate Hearing complaining of Judge Lane’s judicial conduct, asserting that Judge Lane lacks
proper judicial authority, and suggesting that Judge Lane recuse himself. (See, e.g., Dkt. 50).
To obtain recusal pursuant to 28 U.S.C. § 455, a movant must show that a reasonable
person, knowing all the circumstances, would harbor doubts about the judge’s impartiality.
Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1165 (5th Cir. 1982). A judge
should not recuse himself based on unsupported or irrational speculation. McClelland v. Gronwaldt,
942 F. Supp. 297, 302 (E.D. Tex. 1996).
To warrant recusal, the alleged bias must stem from an extrajudicial source and result in an
opinion on the merits on some basis other than what the judge learned from his participation in the
case. United States v. MMR Corp., 954 F.2d 1040, 1045 (5th Cir. 1992) (citations omitted). Recusal may
be warranted where “pervasive bias or prejudice manifests itself only through judicial conduct,” but
only when the movant shows that comments by the judge in question “reflect gratuitous
opposition.” Id. Therefore, for Plaintiff to prevail on his motion to recuse, he must do more than
identify apparently prejudicial or impartial judicial conduct—he must identify prejudicial or impartial
conduct that is extrajudicial in nature, that is, conduct not within the judicial context. In re Corrugated
Container Antitrust Litig., 614 F.2d 958, 965 (5th Cir. 1980); see also Litkey v. United States, 510 U.S. 540,
554 (1994) (“Opinions 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 a deep-seated favoritism or antagonism that would make fair
judgment impossible.”).
Adverse rulings in a case are not an adequate basis for recusal. United States v. MMR Corp.,
954 F.2d at 1045; see also Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997) (“adverse rulings
cannot in themselves form the appropriate grounds for disqualification”). Moreover, “judicial rulings
alone almost never constitute valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555; see
also Berger v. United States, 255 U.S. 22, 31 (1921) (“[T]he bias or prejudice which can be urged against
a judge must be based upon something other than rulings in the case.”); Trust Co. of Louisiana v.
N.N.P., Inc., 104 F.3d 1478, 1491 (5th Cir. 1997) (holding that adverse rulings, even those involving
admonishments by the trial judge, do not demonstrate the trial judge’s impartiality and therefore do
not warrant recusal).
Plaintiff’s allegations of bias and prejudice are speculative and fail to show that a reasonable
person would harbor doubts about Judge Lane’s impartiality in this case. Moreover, Plaintiff has not
shown that the alleged bias is personal rather than judicial in nature. In addition, nothing before the
Court reflects that Judge Lane has had any extrajudicial interactions with Plaintiff or any extrajudicial
interactions otherwise related to Plaintiff’s actions.
As such, IT IS HEREBY ORDERED that Plaintiff Jon R. Deutsch’s Opposed Motion to
Recuse Magistrate (Dkt. 78) is DENIED.
The hearing set before Judge Lane on Tuesday, September 13, 2016, at 9:00 a.m. may
proceed.
SIGNED on September 12, 2016.
_____________________________________
ROBERT PITMAN
UNITED STATES DISTRICT JUDGE
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