Graham v. National Union Fire Insurance Co. of Pittsburgh, PA

Filing 70

MEMORANDUM OPINION AND ORDER denying plaintiff's 67 MOTION for Recusal of David Faber, Senior District Judge. Signed by Judge David A. Faber on 3/14/2013. (cc: counsel of record and Mr. Graham) (mjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
ROBERT E. GRAHAM
Plaintiff,
v.

CIVIL ACTION NO. 1:10-00453

NATIONAL UNION INSURANCE CO.
OF PITTSBURGH, PA,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s pro se filing
styled “Defendant’s Motion Requesting Recusal of David Faber,
Senior District Judge.”

(Doc. No. 67).

When a plaintiff files

pro se, the court sometimes “ignore[s] the legal label that a
pro se litigant attaches to a motion [. . .] in order to place
it within a different legal category.”1
540 U.S. 375, 381 (2003).

Castro v. United States,

Here, the court need not go so far as

to place plaintiff’s filing in a different legal category, but
the court will construe the filing as Plaintiff’s Motion to
Recuse, not Defendant’s.

1

See Doc. No. 67.

See Castro v. United States, 540 U.S. 375, 381-82 (2003)(noting
that federal courts occasionally re-characterize pro se filings
“in order to avoid an unnecessary dismissal [. . .] to avoid
inappropriately stringent application of formal labeling
requirements [. . .] or to create a better correspondence
between the substance of a pro se motion's claim and its
underlying legal basis.”)(internal citations omitted).

Separately, plaintiff cites no legal standard or basis
for recusal.

Nonetheless, the court will evaluate plaintiff’s

recusal motion under the appropriate standards.
Under 28 U.S.C. § 455, recusal is appropriate "if a
person with knowledge of the relevant facts might reasonably
question [a judge's] impartiality."
F.3d 501, 530 (4th Cir. 2008).

United States v. Lentz, 524

Moreover, the Fourth Circuit,

quoting Supreme Court precedent, noted that
an extrajudicial source of bias is neither
sufficient nor necessary for recusal: it is
insufficient because some opinions acquired
outside the context of judicial proceedings ...
will not suffice, and it is not always necessary
because predispositions developed during the
course of a trial will sometimes (albeit rarely)
suffice.
Belue v. Leventhal, 640 F.3d 567, 573 (4th Cir. 2011)(quoting
Liteky v. United States, 510 U.S. 540, 554 (1994))(internal
quotations omitted).

The Fourth Circuit in Belue went further,

reciting the high bar the Supreme Court had set in Liteky for
recusal based on in-trial predispositions:
the Supreme Court in Liteky made clear that parties
would have to meet a high bar to achieve recusal based
on in-trial predispositions [. . .] judicial rulings and
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 almost
never constitute a valid basis for a bias or partiality
motion [. . .] Likewise, judicial remarks that are
critical or disapproving of, or even hostile to,
2

counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.
Id. (quoting Liteky, 510 U.S. at 555)(internal quotations
omitted)(emphasis added).
Moreover, a judge need not recuse himself because of
“unsupported, irrational, or highly tenuous speculation.”
United States, v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998).
According to Liteky, “judicial rulings alone almost never
constitute a valid basis for a bias or partiality motion.”
Liteky, 510 U.S. at 555.

On appeal, recusal decisions are

reviewed under an abuse of discretion standard.

United States

v. Whorley, 550 F.3d 326, 339 (4th Cir. 2008).
Accordingly, recusal is not warranted.2

Nothing in the

record would cause a person, with knowledge of the relevant
facts, reasonably to question the impartiality of this Judge.

2

Nor is recusal pursuant to 28 U.S.C. § 144 appropriate. Under
28 U.S.C. § 144, a judge shall recuse himself in cases in which
the party seeking recusal files a timely and sufficient
affidavit stating the judge has a personal bias or prejudice
against either the affiant or in favor of any adverse party.
The affidavit must allege a personal bias from an extrajudicial
source. See Sine v. Local No. 992 Int'l Brotherhood of
Teamsters, 882 F.2d 913, 914 (4th Cir. 1989).
In this case, Graham has neither filed the required affidavit
nor alleged facts that demonstrate this Judge has any personal
bias based on an extrajudicial source.
3

Based on the foregoing, plaintiff’s motion is DENIED.
(Doc. No. 67).

The Clerk is directed to forward a copy of this

Memorandum Opinion and Order to counsel of record and to Mr.
Graham, who filed this motion pro se.
IT IS SO ORDERED this 14th day of March, 2013.
ENTER:
David A. Faber
Senior United States District Judge

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