Quigley v. City of Huntington WV et al

Filing 60

ORDER denying Plaintiff's 58 MOTION to Disqualify Magistrate Judge Omar J. Aboulhosn. Signed by Magistrate Judge Omar J. Aboulhosn on 1/30/2018. (cc: Plaintiff; counsel of record) (jsa)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
HUNTINGTON DIVISION
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HARRY LAWRENCE QUIGLEY
Plaintiff,
vs.
CITY OF HUNTINGTON, ET AL.,
Defendants.

3:17-CV-01906

ORDER
On January 17, 2018, Plaintiff, acting pro se, filed his Motion to Disqualify District Judge
Robert C. Chambers and Magistrate Judge Omar J. Aboulhosn. 1 [ECF No. 58] Plaintiff appears
to assert that the undersigned is a “co-conspirator” with District Judge Chambers and United States
Magistrate Judge Eifert insofar as his being assigned to this civil matter due to the conflict that
arose once Steven K. Nord, Esq., Ryan Q. Ashworth, Esq., and the law firm of Offutt Nord
Burchett, PLLC filed their Notice of Appearance on behalf of the Defendants. [See, ECF Nos. 39
and 40] Plaintiff only asserts conclusory statements that the undersigned is unable to be neutral
and un-biased without any specific allegations that would support same, other than Plaintiff has
since been served with discovery requests by the Defendants.
As Judge Chambers noted in his Order denying the motion to disqualify him [ECF No. 59],
the relevant Code of Judicial Conduct applicable to the undersigned is Canon 3(C), which
provides, in its entirety, as follows:

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District Judge Chambers has entered an Order denying Plaintiff’s Motion. [ECF No. 59] The District Court deferred
ruling on Plaintiff’s Motion to disqualify the undersigned, though noted there was no basis supporting the motion to
disqualify the undersigned.

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(C) Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in
which the judge’s impartiality might reasonably be questioned,
including but not limited to instances in which:
(a) the judge has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding;
(b) the judge served as a lawyer in the matter in controversy,
or a lawyer with whom the judge previously practiced law
served during such association as a lawyer concerning the
matter, or the judge or lawyer has been a material witness;
(c) the judge knows that the judge, individually or as a
fiduciary, or the judge’s spouse or minor child residing in
the judge’s household, has a financial interest in the subject
matter in controversy or in a party to the proceeding, or any
other interest that could be affected substantially by the
outcome of the proceeding;
(d) the judge or the judge’s spouse, or a person related to
either within the third degree of relationship, or the spouse
of such a person is:
(i) a party to the proceeding, or an officer,
director, or trustee of a party;
(ii) acting as a lawyer in the proceeding;
(iii) known by the judge to have an interest that
could be substantially affected by the outcome
of the proceeding; or
(iv) to the judge’s knowledge likely to be a
material witness in the proceeding;
(e) the judge has served in governmental employment and
in that capacity participated as a judge (in a previous
judicial position), counsel, advisor, or material witness
concerning the proceeding or has expressed an opinion
concerning the merits of the particular case in controversy.
(2) A judge should keep informed about the judge’s personal and
fiduciary financial interests and make a reasonable effort to keep

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informed about the personal financial interests of the judge’s spouse
and minor children residing in the judge’s household.
(3) For the purposes of this section:
(a) the degree of relationship is calculated according to the
civil law system; the following relatives are within the third
degree of relationship: parent, child, grandparent,
grandchild, great grandparent, great grandchild, sister,
brother, aunt, uncle, niece, and nephew; the listed relatives
include whole and half blood relatives and most step
relatives;
(b) “fiduciary” includes such relationships as executor,
administrator, trustee, and guardian;
(c) “financial interest” means ownership of a legal or
equitable interest, however small, or a relationship as
director, advisor, or other active participant in the affairs of
a party, except that:
(i) ownership in a mutual or common
investment fund that holds securities is not a
“financial interest” in such securities unless
the judge participates in the management of
the fund;
(ii) an office in an educational, religious,
charitable, fraternal, or civic organization is
not a “financial interest” in securities held by
the organization;
(iii) the proprietary interest of a policyholder
in a mutual insurance company, or a depositor
in a mutual savings association, or a similar
proprietary interest, is a “financial interest” in
the organization only if the outcome of the
proceeding could substantially affect the value
of the interest;
(iv) ownership of government securities is a
“financial interest” in the issuer only if the
outcome of the proceeding could substantially
affect the value of the securities;
(d) “proceeding” includes pretrial, trial, appellate review, or
other stages of litigation.
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(4) Notwithstanding the preceding provisions of this Canon, if a
judge would be disqualified because of a financial interest in a party
(other than an interest that could be substantially affected by the
outcome), disqualification is not required if the judge (or the judge’s
spouse or minor child) divests the interest that provides the grounds
for disqualification.
It appears to the undersigned that the Plaintiff alleges that the undersigned is biased against
the Plaintiff for merely agreeing to accept the assignment of this matter through the normal process
employed by the District Court for the Southern District of West Virginia for a Magistrate Judge
recusing themselves due to a conflict. In this matter, Magistrate Judge Eifert recused herself when
the firm of Offutt Nord Burchett, PLLC was retained to represent the defendants. Thereafter, the
undersigned was selected to handle the Magistrate Judge’s duties in this matter. Looking at the
elements of Canon 3(C)(1), the Plaintiff does not argue that any of the specific examples found in
Canon 3(C)(1)(a)-(e) apply to the undersigned. Furthermore, the undersigned FINDS that the
undersigned’s impartiality would not be reasonably questioned by the mere fact that the
undersigned accepted the assignment of this matter upon the voluntary recusal of another
Magistrate Judge who acted ethically in voluntarily recusing herself pursuant to the same Canon.
Therefore, the undersigned FINDS and CONCLUDES that Plaintiff’s motion for the
undersigned’s disqualification is without merit and is therefore DENIED. [ECF No. 58]
In accordance with Rule 72(a) of the Federal Rules of Civil Procedure, the ruling set forth
above in this non-dispositive Motion may be contested by filing within 14 days, objections to this
Order with District Judge Robert C. Chambers. If objections are filed, the District Court will
consider the objections and modify or set aside any portion of the Order found clearly to be
erroneous or contrary to law.
IT IS SO ORDERED.

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The Clerk is requested to send a copy of this Order to counsel of record and the pro se
Plaintiff.
ENTER: January 30, 2018.

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