United States District Court, E.D. Texas, Sherman Division
DARLENE C. BALISTRERI-AMRHEIN, ANTHONY J. BALISTRERI, DECEASED
DONALD VERRILLI, JR., UNITED STATES SOLICITER GENERAL, ET AL.
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiffs' Motion to Recuse &
Mandatory Disqualifications of Judges Amos Mazzant III &
Magistrate Christine Nowak for Timely “Good Cause
Reasons” (“Motion to Recuse”) (Dkt. #142).
Having considered the relevant pleadings, the Court finds
Plaintiffs' Motion to Recuse (Dkt. #142) should be
Plaintiffs filed the Motion to Recuse
on August 7, 2017, seeking to recuse the Court under 28 U.S.C.
§ 455 and various Texas statutes (see Dkt.
#142). Construing the Motion to Recuse liberally, the Court
discerns pro se Plaintiffs allege four bases for
recusal: (1) the Court withheld service in this case pending
judicial screening under 28 U.S.C. § 1915(e); (2) the
Court has once warned Plaintiff Darlene C. Amrhein that
repeated filings in a closed case may result in sanctions;
and (3) the Court's decisions in this matter are
motivated not by the law but by the Court's
“favor for friends” who appear as Defendants in
this matter, namely “Defendant Attorney General
Paxton” (Dkt. #142 at 3, 5, 14-15).
initial matter, the Court notes none of the Texas statutes
and/or Rules of Civil Procedure Plaintiffs cite governs
recusal of federal judges. See, e.g., Tex. Gov't
Code § 74.059 (governing powers and duties of Texas
state district, statutory probate and statutory county court
judges); id. § 25.00255 (governing recusal of
Texas state statutory probate court judges); Tex.R.Civ.P. 18A
(outlining the standards and procedure applicable when a
party seeks to recuse Texas state judges); see also Hill
v. Mississippi, 427 F. App'x 317, 318 (5th Cir.
2011) (per curiam) (applying federal recusal statute to
federal judge who previously had presided over prisoner's
state proceedings in earlier position as a state judge). In
any event, the Court detects no material difference in the
substantive state and federal rules governing recusal in
Texas. Compare 28 U.S.C. § 455, with
Tex. R. Civ. P. 18b. Accordingly, the Court applies the
applicable federal statute, § 455.
§ 455, Plaintiffs, as the party moving to recuse, bear
“a heavy burden of proof” in showing the Court
should recuse. E.g., United States v.
Reggie, No. 13-111-SDD-SCR, 2014 WL 1664256, at *2 (M.D.
La. Apr. 25, 2014). The statute 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.” 28 U.S.C.
§ 455. The decision whether to recuse under § 455
is committed to the sound discretion of the Court asked to
recuse. See, e.g., Garcia v. City of
Laredo, 702 F.3d 788, 793-94 (5th Cir. 2012);
Sensley v. Albritton, 385 F.3d 591, 598 (5th Cir.
2004) (quoting Chitimacha Tribe v. Harry L. Laws
Co., 690 F.2d 1157, 1166 (5th Cir. 1982)).
U.S. Supreme Court has made clear “[t]he recusal
inquiry must be made from the perspective of a
reasonable observer who is informed of all the
surrounding facts and circumstances.” Cheney
v. U.S. Dist. Court for Dist. of Columbia, 541 U.S. 913,
924 (2004)(emphases added); see also United States v.
Morrison, 833 F.3d 491, 506 (5th Cir. 2016), cert.
denied, 137 S.Ct. 1098, 197 L.Ed.2d 206 (2017). The
Fifth Circuit has interpreted this mandate to mean that
“[courts] ask how things appear to the well-informed,
thoughtful and objective observer, rather than the
hypersensitive, cynical, and suspicious person” while
remaining “mindful that an observer of our judicial
system is less likely to credit judges' impartiality than
the judiciary” would be. United States v.
Jordan, 49 F.3d 152, 156-57 (5th Cir. 1995). Indeed, the
statute exists to mandate recusal in cases where it truly
appears (or is the case that) the presiding judge cannot
consider the case impartially-not where a litigant's
speculation based on incomplete information implies
concealment and impropriety. See H.R. Rep. No.
93-1453, at 6355 (1974).
the recusal inquiry is “extremely fact intensive and
fact bound” and requires “a close recitation of
the factual basis for the . . . recusal motion” by the
movant. Republic of Panama v. Am. Tobacco Co., Inc.,
217 F.3d 343, 346 (5th Cir. 2000). A court's own analysis
must likewise “be guided, not by comparison to similar
situations addressed by prior jurisprudence, but rather by an
independent examination of the facts and circumstances of the
particular claim.” Id.; see also United
States v. Bremers, 195 F.3d 221, 226-27 (5th Cir. 1999)
(finding that a “similar situation” presented in
another case calling for the same district judge's
recusal merited independent consideration). Fortuitous timing
of a recusal motion-immediately following an unfavorable
ruling, for example-warrants closer consideration of the
movant's intent in seeking recusal. See United States
v. Vadner, 160 F.3d 263, 264 (5th Cir. 1998) (“The
most egregious delay-the closest thing to per se
untimeliness-occurs when a party already knows the facts
purportedly showing an appearance of impropriety but waits
until after an adverse decision has been made by the judge
before raising the issue of recusal.”).
instant case, and as noted supra, Plaintiffs assert
recusal is appropriate because the Court withheld service of
process of the live pleading-Plaintiffs' Third Amended
Complaint (Dkt. #126) pending review of the Third Amended
Complaint under the in forma pauperis screening
statute, 28 U.S.C. § 1915 (see Dkt. #142 at 3,
5, 13). Although Federal Rule of Civil Procedure 4(m)
prescribes service of process “within ninety days after
the complaint is filed, ” it also permits a court to
toll that period in certain circumstances. See Fed.
R. Civ. P. 4(m). Relevant here, a court may withhold service
where the plaintiff proceeds in forma pauperis
pending the court's screening of the complaint for
frivolousness under Section 1915. See, e.g.,
Shabazz, 380 F.Supp.2d at 799-800; Coleman v.
Colvin, No. 3:16-cv-2608-D-BK, 2017 WL 2348812, at *1
(N.D. Tex. Apr. 13, 2017) (“Plaintiff's pro
se complaint was referred to the United States
magistrate judge for judicial screening. The Court granted
the motion to proceed in forma pauperis, but did not
issue process pending preliminary screening.”); cf.
Osborne v. Texas, No. A-13-CV-528-LY, 2013 WL 5556210,
at *3 (W.D. Tex. Oct. 8, 2013) (noting courts have a
“duty to screen for frivolousness” in certain
cases and finding sua sponte examination of the
merits of a plaintiff's case prior to service proper).
Accordingly, Section 1915, as interpreted by courts within
the Fifth Circuit, contemplates screening of complaints filed
through Section 1915; no basis exists for recusal by virtue
of the Court's withholding service of the Third Amended
Complaint pending such screening in this case.
also seemingly argue recusal is appropriate in light of the
Court's admonishment in its July 20, 2017 Order that
“Plaintiff [Darlene C. Amrhein] has exhausted her
options at the District Court level; any further relief must
be sought before the Fifth Circuit. Plaintiff is warned
against making further frivolous and/or meritless requests
for reconsideration in this case” (Dkt. #139 at 4).
Plaintiffs allege such statement demonstrates bias. The U.S.
Supreme Court has noted that, generally, a movant must point
to an “extrajudicial” source of bias in order to
obtain recusal. Liteky v. United States, 510 U.S.
540, 544-45 (1994) (citing United States v.
Grinnell, 384 U.S. 563, 583 (1966)). Further,
“trial rulings have a judicial
expression rather than a judicial
source” such that “judicial rulings
alone almost never constitute a valid basis for a bias or
partiality motion.” Id. at 545, 555. Trial
rulings instead “are proper grounds for appeal, not for
recusal.” Id. at 555. Moreover,
“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, do not constitute a
basis for a bias or partiality motion unless they display a
deep-seated favoritism or antagonism that would make fair
judgment impossible.” Id. (noting also that
this applies to opinions manifested as “judicial
remarks”). The Court's admonishment does not
constitute an “extrajudicial” statement the
proper target of a recusal motion and does not evince
“a deep-seated favoritism or antagonism that would make
fair judgment impossible.” See Liteky, 510
U.S. at 544-45, 555. Rather, the Court rendered such warning
in light of “Plaintiff's litigation history [in
other cases], considered alongside Plaintiff's filing
behavior in this case[, ]” specifically the repeated
filings for reconsideration after closure of the case (Dkt.
#139 at 2-3). Such warning was (and remains) appropriate
under the circumstances (see generally Dkts.
#134-145). See United States v. Fulton, 469 F.
App'x 322, 324 (5th Cir. 2012) (per curiam); see also
Amrhein v. Riechert, No. 3:12-CV-03707-G-BK, 2013 WL
1155473, at *13-14 (N.D. Tex. Feb. 1, 2013), report and
recommendation adopted, 2013 WL 1174571 (N.D. Tex. Mar.
21, 2013) (imposing broad pre-filing injunction on Plaintiff
Darlene C. Amrhein after considering her litigation history
and filing behavior before the Northern District of Texas).
The Court's warning to Plaintiffs about repeated,
frivolous filings in this case provides no basis for recusal.
cite as a third reason for recusal the Court's dismissal
of an unrelated civil action involving Defendant Texas
Attorney General Kenneth Paxton: Plaintiffs claim the Court
“tossed Defendant Attorney General Paxton Security
Fraud Suit Oct 7, 2016 making ‘favors for
friends'” (Dkt. #142 at 5). Plaintiffs insinuate
that the Court has a relationship with Defendant Paxton that
creates an appearance of impropriety (or actual bias) but
allege no relation other than one the Court has as judge
presiding over lawsuits in which Defendant Paxton is a named
litigant. Further, and again, the Court's rulings-either
in this matter or any other-do not themselves serve as a
basis for recusal. E.g., Beemer v. Holder, No. CV
B-08-449, 2011 WL 13180172, at *4 (S.D. Tex. Aug. 19, 2011)
(finding pro se plaintiffs allegations that the
presiding judge's determinations in other cases formed a
basis for the judge's recusal in the pending case
“[ran] afoul of the settled rule that ‘inferences
drawn from prior judicial determinations are insufficient
grounds for recusal'”). The Court finds no basis
for recusal in this matter.
therefore ORDERED that Plaintiffs'
Motion to Recuse & Mandatory Disqualifications of Judges
Amos Mazzant III & Magistrate Christine Nowak for Timely
“Good Cause Reasons” (Dkt. #142) is hereby