Opinion
Case No. 01-4104-DES
July 19, 2002
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff's Motion for Appointment of Counsel (Doc. 74), Plaintiff's Motion for Disqualification (Doc. 76), and Plaintiff's Motion for Injunction, Protective and Restraining Orders (Doc. 78). Defendants have represented to the court that they do not intend to respond to the motions before the court. The court has reviewed plaintiff's submissions and is now prepared to rule.
I. BACKGROUND
Plaintiff brought this action against defendants alleging violations of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., and the Fair Credit Billing Act, 15 U.S.C. § 1666 et seq. On November 19, 2001, the parties appeared before Magistrate Judge Walter for a scheduling conference. According to the transcript of the proceedings, the scheduling conference quickly turned into a settlement conference. The parties came to an agreement and all parties signed a settlement agreement. (Pl. Mem. in Supp. of Pl. Mot. to Invalidate the Settlement Agreement, Ex. A).
On November 30, 2001, plaintiff filed a motion to invalidate the settlement agreement signed at the November 19, 2001, settlement conference. In her motion, plaintiff offered multiple reasons for invalidating the settlement agreement including that Magistrate Judge Walter wore her black robe to intimidate plaintiff, Magistrate Judge Walter forced plaintiff to sign the settlement agreement without first allowing her to read the agreement, Magistrate Judge Walter abused her powers, and Magistrate Judge Walter and the defense attorneys conspired to take away plaintiff's legal rights. On December 10, 2001, defendants filed a joint motion to enforce the settlement agreement. The parties' motions were scheduled for oral arguments on January 29, 2002. Defendants appeared through counsel, but plaintiff failed to appear.
On February 15, 2002, Magistrate Judge Walter issued a Report and Recommendation ("RR"), recommending that plaintiff's motion to invalidate the settlement agreement be denied and recommending that defendants' motion to enforce the settlement agreement be granted. Plaintiff made numerous objections to Magistrate Judge Walter's RR. On May 8, 2002, the court issued a MO accepting and adopting the RR. In its order, the court found the vast majority of plaintiff's contentions were directly controverted by the record. Those contentions that could not be controverted by the record were found to be conclusory and vague and, thus, did not warrant invalidation of the settlement agreement.
On May 15, 2002, plaintiff filed a motion requesting that the court reconsider its May 8, 2002, order and on June 5, 2002, plaintiff filed a motion requesting an investigation and/or a hearing. Both motions were denied and Magistrate Judge Walter was directed to set a hearing for execution of the stipulation for dismissal in exchange for the settlement funds. The hearing is set for July 25, 2002, at 11:30 a.m.
After plaintiff's motion to reconsider was denied, she filed the motions currently before the court. The court will address each motion in turn.
II. DISCUSSION
A. Motion for Disqualification
Plaintiff's motion for disqualification requests the court for an order disqualifying the undersigned and Magistrate Judge Walter. In support of her motion, plaintiff contends that because she has filed complaints against both the undersigned and Judge Walter, the undersigned and Judge Walter will be not be able to impartially proceed in this case. Plaintiff additionally reasserts all the arguments made in her motion to invalidate the settlement agreement, objections to Magistrate Judge Walter's Report and Recommendation ("RR"), and motion to reconsider. Plaintiff also contends that the undersigned attempted to suppress evidence by denying her motion for an investigation and hearing. Plaintiff further alleges that the undersigned, Magistrate Judge Walter, the defendants, and the defense attorneys engaged in ex parte communications. Finally, plaintiff argues that Magistrate Judge Walter and the undersigned are corrupt and dishonest.
The court construes plaintiff's motion for disqualification as one brought pursuant to 28 U.S.C. § 455(a), which provides that "[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." The court must decide "whether a reasonable person, knowing all the relevant facts, would harbor doubts about the judge's impartiality." United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993) (citations and quotations omitted). Additionally, under § 455, factual allegations need not be taken as true, nor is the judge limited to the facts presented by the challenging party. See Hinman, 831 F.2d at 939.
Litigants may also bring motions for recusal pursuant to 28 U.S.C. § 144. A party seeking recusal. pursuant to § 144 must 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. . . ." Plaintiff did not attempt to comply with the procedure set forth in § 144. Further, even if plaintiff had attempted to follow the proper procedures, allegations of bias are considered insufficient if they are based on "conclusions, rumors, beliefs and opinions." Hinman v. Rogers, 831 F.2d 937, 940 (10th Cir. 1987) (citing Davis v. Commissioner, 734 F.2d 1302, 1303 (8th Cir. 1984)). Instead, the movant must "`state with required particularity the identifying facts of time, place, persons, occasion, and circumstance,'" which provide a basis for the motion for recusal. Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988) (quoting Hinman, 831 F.2d at 939).
Plaintiff first alleges that the undersigned and Magistrate Judge Walter must recuse themselves because she has filed a judicial misconduct complaint. The Tenth Circuit has held that baseless personal attacks or suits against the judge by a party are not a basis for recusal. See Cooley, 1 F.3d at 994 (citing United States v. Bray, 546 F.2d 851, 858 (10th Cir. 1976)). A party cannot force recusal merely by filing a complaint or a law suit against a judge. See United States v. Martin-Trigona, 759 F.2d 1017, 1020-21 (2d Cir. 1985); In re Winslow, 107 B.R. 752, 753 (D. Colo. 1989) (finding that a party's filing of a complaint with Judicial Counsel against a judge is not grounds for disqualifying the judge from further hearing matters involving the filing parties).
Plaintiff's allegation that her motion for an investigation was denied in order to suppress evidence, her allegation that the court engaged in ex parte communications, and her allegation that Magistrate Judge Walter and the undersigned are corrupt and dishonest have no basis in fact and are merely unsupported, irrational, and highly tenuous speculation providing no grounds for disqualification. See Hinman, 831 F.2d at 939. " [S]peculations, beliefs, conclusions, innuendo, suspicion, opinion, and similar non-factual matters" such as those contained in plaintiff's motion will not serve as a basis for disqualification. See Cooley, I F.3d at 993 (citing United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992)).
The remainder of plaintiff's allegations focus on her displeasure for the court's previous rulings as to the propriety of the settlement agreement. Displeasure with the court's ruling, however, is not grounds for disqualification. Liteky v. United States, 510 U.S. 540, 555 (1994). While adverse rulings may be proper grounds for appeal, they are not grounds for recusal.
Consistent with the above findings, plaintiff's motion for disqualification is denied. The court is confident that it and Magistrate Judge Walter can continue to be impartial arbiters in this case despite the complaints filed by plaintiff.
B. Appointment of Counsel
Plaintiff also asks the court to appoint counsel. Plaintiff's request for appointment of counsel is two-fold. First, plaintiff requests assistance of counsel for the remainder of the proceedings before this court. Second, plaintiff requests counsel for the appeals process.
The court first notes that a party has no constitutional right to appointment of counsel in a civil case. Bethea v. Crouse, 417 F.2d 504, 505 (10th Cir. 1969). The court may, however, in its discretion, appoint counsel for any person who is unable to afford counsel. See 28 U.S.C. § 1915(e)(1); Blankenship v. Meachum, 840 F.2d 741 (10th Cir. 1988). See also (Doc. 3) (granting plaintiff's motion to proceed in forma pauperis).
In deciding whether to appoint counsel the court must consider: (1) the merits of plaintiff's claims, (2) the nature of the factual issues raised in the claims, (3) plaintiff's ability to present her claims, and (4) the complexity of the legal issues raised. Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (citing Williams v. Meese, 926 F.2d 994, 996 (10th Cir. 1991)).
To the extent plaintiff requests counsel for the remainder of the proceedings in this court, her request is denied. There are no claims to be resolved, so there is no need to determine the nature of the claims, the complexity of the legal issues or plaintiff's ability to present such claims. The parties have reached a valid settlement agreement, the court has enforced the settlement agreement and plaintiff's motion to reconsider enforcement of the settlement agreement has been denied. The only remaining matter is execution of the settlement agreement and exchange of the settlement funds. To that end, plaintiff need only appear in court on the scheduled day, execute the stipulation for dismissal and take possession of the settlement funds.
As for plaintiff's desire to have appellate counsel appointed, her request is premature. Final judgment has not been entered and plaintiff has not filed a notice of appeal. Further, plaintiff's request for appellate counsel is better directed toward the Tenth Circuit.
C. Motion for Injunction, Protective, and Restraining Orders
In requesting an order for an injunction, a protective order and a restraining order, plaintiff claims that she has been assaulted, coerced, threatened, and harassed by the defense attorneys, the defendants, Magistrate Judge Walter and the undersigned. Plaintiff's motion also claims that the court ordered hearing scheduled for July 25, 2002, at 11:30 a.m. is an attempt by Magistrate Judge Walter to implement additional assaults and subject plaintiff to additional harassment. The motion further states that plaintiff's life has been threatened because the defense attorneys used the words "shotgun approach" in defendants' joint response to plaintiff's motion to reconsider. Plaintiff further states the following: "[T]he plaintiff feels and believes that the plaintiff received several threatening and harassing telephone calls for and on behalf of defense attorneys, defendants attorneys law firms, U.S. Magistrate Judge Walter and U.S. District Judge Saffels."
Plaintiff's motions for a protective order, an injunction, and restraining order are not properly before the court and are summarily denied. Plaintiff's request to have the Clay County Sheriff's Department escort her to the United States Courthouse in Topeka is denied. Plaintiff request to have someone from the Topeka Police Department, FBI, United States Attorney's Office and Kansas Attorney General's office present at the July 25, 2002, hearing is denied.
Plaintiff's motion for a protective order clearly has no application to the current status of this case. Protective orders are primarily to protect parties from "annoyance, embarrassment, oppression, or undue burden or expense" in discovery matters. See Fed.R.Civ.P. 26(c). Plaintiff's motions for an injunction and a restraining order are also improperly presented. See Fed.R.Civ.P. 65. Furthermore, plaintiff has not even remotely shown the necessary requirements for a restraining order or an injunction. See Kiowa Indian Tribe of Oklahoma v. Hoover, 150 F.3d 1163, 1171 (10th Cir. 1998).
IT IS THEREFORE BY THIS COURT ORDERED that the Plaintiff's Motion for Appointment of Counsel (Doc. 74) is denied, Plaintiff's Motion for Disqualification (Doc. 76) is denied, Plaintiff's Motion for Injunction, Protective, and Restraining Orders (Doc. 78) is denied.