Opinion
Civil Action No. 04-1919, Section "I" (3).
July 28, 2004
ORDER AND REASONS
Before the Court is a request for disqualification/recusal filed by pro se plaintiff, Chris Larsen ("Larsen"). Albeit entitled "Motion/Order to Reconsider Pauper Status," the motion bears no resemblance to a motion to reconsider, since it brings nothing new regarding the issue of the pauper status to this Court's attention. The motion demands in pertinent part, "recuse Knowles completely and totally form the case or any other of my future cases because seems to be a LIAR without doubt, with Prejudice!" (emphasis in original). The one-page letter/motion further states it is in response to the "unwise and DIS-HONEST, BIASED decision concerning case 04-1919, Sect. A, Mag. 3, Chris Larsen vs. "ELEGED" MEMBERS OF WILDLIFE AND FISHERIES." (emphasis in original).
Record Document No. 11.
The aforesaid motion questions the impartiality of the undersigned Magistrate Judge with respect to a ruling in the instant case. For the following reasons, the plaintiff's motion is DENIED.
DISQUALIFICATION
The parties in a federal proceeding clearly have no right to the judge of their choice. However, if a party believes that the judge assigned to hear his case cannot be impartial, the party may move to disqualify or recuse the judge pursuant to 28 U.S.C. § 144 or § 455. Judicial qualification is solely a question of law. The burden of proof on the litigant in this regard is substantial, because a judge is presumed to be impartial. If the motion is made pursuant to § 455, the judge whose impartiality is questioned rules on the motion. If the motion is pursuant to § 144, the same judge must determine whether the required affidavit complies with the law and, if so, he must turn the matter over to another judge. Simply stated, in the case of a § 144 motion, the judge whose impartiality is questioned may only rule on the sufficiency of the affidavit. However, § 144 is inapplicable in the case of a pro se litigant; thus plaintiff's request for disqualification is discussed under the rubric of 28 U.S.C. § 455.Section 455 of Title 28 states in pertinent part:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
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(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his 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 substantially affected by the outcome of the proceeding;
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(c) A judge should inform himself about his personal and fiduciary financial interests, and make a reasonable effort to inform himself about the personal financial interests of his spouse and minor children residing in his household. . . .
Broadly construed, the plaintiff's motion addresses § 455(a), (b)(1) and (b)(4). At the outset the Court notes that it has no personal or fiduciary financial interests in any of the parties to the instant proceedings. Additionally, the undersigned Magistrate Judge's relations, as described in § (b)(4), have no such personal or financial interest. Because of the absence of any personal or financial interest in any of the parties or the outcome this case, the undersigned is of the opinion that his impartiality cannot reasonably be questioned. A judge should only be disqualified if his impartiality might reasonably be questioned or if he has or had a specific level of personal involvement in the matter.
See Florence v. Frontier Airlines, Inc., 2003 WL 21501974 * 1 (N.D. Tex. June 26, 2003) ( citing I.Q. Prods. Co. v. Pennzoil Prods. Co., 305 F.3d 368, 377 (5th Cir. 2002), cert. denied, 123 S.Ct. 1632 (2003)).
The only other focus of the plaintiff's motion is the ruling denying his application for pauper status, which is an intra judicial rulings. Adverse judicial rulings alone do not support an allegation of bias under 28 U.S.C. § 455. In Liteky, the Supreme Court stated that "the recusal statute 'was never intended to enable a discontented litigant to oust a judge because of adverse rulings made, . . . but to prevent his future action in the pending cause.'"
See Liteky v. United States, 510 U.S. 540, 556 n. 3 (1994).
See Matasserin v. Lynch, 174 F.3d 571 (5th Cir. 1999) ( citing In re Billedeaux, 972 F.2d 104, 106 (5th Cir. 1992)); United States v. Landerman, 109 F.3d 1053, 1066 (5th Cir. 1997), cert. denied, 522 U.S. 1033 (1997).
Liteky, 510 U.S. at 549 ( quoting Ex parte American Steel Barrel Co., 230 U.S. 35, 44 (1913)).
The plaintiff has the burden of demonstrating that this Court should be recused on the basis of some bias or prejudice stemming from an extrajudicial source, not an intra judicial ruling. Review of the plaintiff's written submission indicates that this Court's ruling in the captioned case is the basis for his request for disqualification. The ruling at issue simply stated:
See id. at 555-56 (noting that judicial rulings alone almost never constitute a valid basis for a bias or partiality motion and only in the rarest circumstances evidence a degree of favoritism or antagonism required when no extrajudicial source is involved).
"The motion is denied; the party is not entitled to proceed in forma pauperis for the listed reason: The claim is prescribed on its face and frivolous, in that it concerns an alleged theft of property ["cheetah skins"] on November 29, 1981. See 28 U.S.C. § 1915(e)(2)(B)(i-ii)."
See Order dated July 8, 2004.
Although the aforesaid ruling in the captioned proceeding may properly form the basis of an appeal to the district judge, this Court is of the opinion that it is not properly grounds for disqualification/recusal under any of the provisions of 28 U.S.C. § 455.
CONCLUSION
In addition to impertinent, Larsen's motion to recuse and/or disqualify is without merit for all of the aforesaid reasons. Accordingly,
IT IS ORDERED that the plaintiff's Request for Disqualification and/or Recusal is DENIED.
OBJECTIONS
Objections must be: (1) specific, (2) in writing, and (3) served within ten days after being served with a copy of this order. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 1(a), 6(b) and 72(b) A party's failure to object bars that party from: (1) entitlement to de novo review by a district judge; and (2) appellate review of the unobjected-to factual findings and legal conclusions accepted by the district court, except upon grounds of plain error. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).