Stewart v. Stoller et al

Filing 239

MEMORANDUM DECISION denying 228 Motion to Vacate ; denying 228 Motion to Stay ; denying 228 Motion to Continue; denying 229 Motion to Compel; denying 230 Motion ; denying 231 Motion ; denying 232 Motion ; denying 233 Motion. Signed by Magistrate Judge Evelyn J. Furse on 4/5/13. (jlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SOPHIA STEWART,

MEMORANDUM DECISION AND
ORDER
Plaintiff,

v.

Case No. 2:07-cv-00552-DB-EJF

MICHAEL T. STOLLER, et al.,

District Judge Dee Benson

Defendants.

Magistrate Judge Evelyn J. Furse

On December 11, 2012, Plaintiff Sophia Stewart filed a number of motions seeking to
vacate this Court’s December 6, 2012, Memorandum Decision and Order denying Ms. Stewart’s
Motion for Recusal and objecting to the hearing set for December 14, 2012, on Defendant Gary
Brown’s Motion in Limine. (See ECF Nos. 228–233.) Because Ms. Stewart proceeds pro se, the
Court liberally construes her filings. Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir.
2010) (citation omitted).
A. Disqualification is not Justified
ECF Nos. 228, 230, and 231 seek, among other things, to disqualify District Judge Clark
Waddoups1 and Magistrate Judge Evelyn Furse2 and vacate this Court’s previous Memorandum
Decision and Order (“Decision”) denying Ms. Stewart’s earlier Motion for Recusal.

1

Judge Waddoups recused himself from this case on December 13, 2012, and Judge Dee
Benson now sits on this case. (ECF No. 234.) This Motion is therefore moot to the extent it
seeks to disqualify Judge Waddoups.
2

A judge whose recusal is sought under 28 U.S.C. section 144 or 455 need not transfer
the matter to another judge but may decide the motion herself. Salt Lake Tribune Pub. Co., LLC
v. AT&T Corp., 353 F. Supp. 2d 1160, 1172 (D. Utah 2005) (citations omitted).
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Courts generally recognize the following three grounds for reconsideration: “(1) an
intervening change in controlling law; (2) availability of new evidence; and (3) the need to
correct clear error or prevent manifest injustice.” Ekotek Site PRP Comm. v. Self, 932 F. Supp.
1319, 1322 (D. Utah 1996). Ms. Stewart’s Motions do not state any recognized grounds for
disturbing this Court’s prior Decision, and the Court therefore denies these Motions to the extent
they ask this Court to revisit that Decision.
Rather, Ms. Stewart generally repeats the same type of conclusory allegations of bias and
prejudice this Court already found could not provide a basis for disqualification under 28 U.S.C.
section 144 or 28 U.S.C. section 455. The only new facts Ms. Stewart alleges relate to this
Court’s setting of a hearing on Defendant Gary Brown’s Motion in Limine. Ms. Stewart
complains she did not receive adequate notice of the hearing and the Court’s communications
with Mr. Brown in setting his Motion in Limine for a hearing and granting him permission to
appear by telephone were improper. (See ECF Nos. 211, 227.) Ms. Stewart does not identify
what was improper about the actions, and, in fact, she also could have requested leave to appear
by telephone. (See ECF No. 217.) The Court ultimately vacated that hearing on December 13,
2012.
Section 455 provides an objective standard for disqualification. In re McCarthey, 368
F.3d 1266, 1269 (10th Cir. 2004). Under this standard:
disqualification is appropriate only where the reasonable person, were he to know all the
circumstances, would harbor doubts about the judge’s impartiality. There must be a
reasonable factual basis to question the judge’s impartiality. The scope of inquiry is
limited to outward manifestations and reasonable inferences drawn therefrom. Section
455 does not require recusal based only on assumptions about a judge’s beliefs that are
not substantiated by the facts of record.
Id. at 1269–70 (citations omitted).

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Section 144 requires the party who seeks to disqualify a judge to 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. The Court
strictly construes timely filed affidavits against the affiant, requiring them to meet a substantial
burden to prove the judge is not impartial. United States v. Burger, 964 F.2d 1065, 1070 (10th
Cir. 1992) (citation omitted). An affidavit “is insufficient if it merely states conclusions, rumors,
beliefs and opinions; it must state with required particularity the identifying facts of time, place,
persons, occasion, and circumstances.” Green v. Dorrell, 969 F.2d 915, 919 (10th Cir. 1992)
(quotations and citations omitted).
Even read liberally, nothing in Ms. Stewart’s filings raises any question as to this Court’s
impartiality. Thus, Ms. Stewart has no basis for disqualification under section 455 or 144. The
Court denies the Motions to the extent they seek to disqualify Magistrate Judge Furse.
B. The December 14 Hearing
ECF Nos. 228, 229, 231, 232, and 233 seek to compel the attendance of Defendants at the
December 14, 2012, hearing on Defendant Gary Brown’s Motion in Limine or alternatively to
continue that hearing. On December 13, 2012, this Court vacated that hearing. Accordingly, the
Court denies as moot these Motions to the extent they seek relief related to the December 14
hearing.3

3

ECF Nos. 228 and 231 also sought the relief discussed above. See supra Part A.
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CONCLUSION
For the foregoing reasons, the Court hereby orders as follows:
1. The Court DENIES ECF No. 228.
2. The Court DENIES ECF No. 229.
3. The Court DENIES ECF No. 230.
4. The Court DENIES ECF No. 231.
5. The Court DENIES ECF No. 232.
6. The Court DENIES ECF No. 233.
SO ORDERED this 5th day of April, 2013.
BY THE COURT:

________________________________
Evelyn J. Furse
United States Magistrate Judge

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