Brito v. Malone

Filing 20

ORDER signed by Judge J.P. Stadtmueller on 11/14/2017 DENYING 18 Petitioner's Motion for Recusal. Within 5 days, Petitioner to file either a notice indicating that he wishes to proceed on his existing claim only or a voluntary dismissal of his petition altogether; failure to timely do so will result in dismissal of Petitioner's petition without further notice. (cc: all counsel, via mail to Gabriel Brito at Milwaukee Secure Detention Facility) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
GABRIEL BRITO,

v.

Petitioner,

Case No. 17-CV-135-JPS-JPS

RONALD MALONE,
Respondent.

ORDER

On October 18, 2017, the Court instructed Petitioner, for the second
time, to decide whether to proceed solely on the basis of his existing,
properly exhausted claim or voluntarily dismiss this action and proceed
with additional post-conviction motion practice in Wisconsin courts.
(Docket #17). The Court imposed a deadline of fourteen days for Petitioner
to inform the Court of his decision, meaning that Petitioner had until
November 1, 2017 to indicate to the Court whether he wishes to proceed on
his exhausted claim or dismiss this action. Id. at 2. Petitioner filed nothing
on or before November 1, 2017.
Instead, on November 6, 2017, Petitioner filed a frivolous motion
seeking the recusal of the undersigned judge based on Petitioner’s
suspicion that the undersigned judge had improper contact with a
Wisconsin Department of Corrections employee, Thomas P. Salter
(“Salter”), who was apparently involved in Petitioner’s recent state
revocation proceeding. (Docket #18 and #19). The recusal statute on which
Petitioner relies mandates recusal when the movant demonstrates 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.

Petitioner’s motion is baseless. The undersigned judge has never spoken
with or had any other kind of contact with Salter. There is nothing in
Petitioner’s motion or affidavit to suggest that this Court is biased against
him or in favor of Respondent. The reason for Petitioner’s recusal motion is
obvious: obfuscation. Plaintiff’s motion will be denied.1
The Court will generously provide Petitioner one last opportunity to
inform the Court whether he wishes to proceed with this action solely on
the basis of his existing, properly exhausted claim or voluntarily dismiss
this action so that he can proceed with additional post-conviction motion
practice in Wisconsin courts. The Petitioner must file a pleading informing
the Court of his decision within five (5) days of the entry of this Order, or
this action will be dismissed without further notice.
Accordingly,
IT IS ORDERED that Petitioner’s motion for recusal (Docket #18) be
and the same is hereby DENIED; and

Further, it is not clear that Petitioner, proceeding pro se, can meet the
statutory requirements to bring a recusal motion under Section 144 in the first
place. Section 144 requires that a motion made thereunder be accompanied by a
“certificate of counsel of record stating that it is made in good faith.” 28 U.S.C. §
144; see also United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993). Because a
certificate of counsel is required by the terms of the statute, which must be
construed strictly to prevent abuse, courts have held that Section 144 is not
available to pro se litigants. See Peel v. United States, No. 12-CV-275-WDS, 2012 WL
1623304, at *4 (S.D. Ill. May 9, 2012); Robinson v. Gregory, 929 F. Supp. 334, 337–38
(S.D. Ind. 1996); Cohee v. McDade, 472 F.Supp.2d 1082, 1083 (S.D. Ill. 2006); see also
United States v. Collins, 203 Fed. App’x 712, 714 (7th Cir. 2006) (affirming district
court’s denial of petitioner’s Section 144 motion where it was untimely and did not
include an affidavit or certificate of counsel). Because Petitioner’s motion in this
case is clearly without merit, it will be denied on that ground.
1

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IT IS FURTHER ORDERED that Petitioner shall file, no later than
five (5) days from the date of this Order, either: (i) a notice indicating that
he wishes to proceed on his existing claim only; or (ii) a voluntary dismissal
of his petition altogether. If Petitioner fails to file such a submission in
accordance with the deadline set forth above, his petition will be dismissed
without further notice.
Dated at Milwaukee, Wisconsin, this 14th day of November, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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