United States District Court, E.D. Texas, Sherman Division
DARLENE C. AMRHEIN
UNITED STATES OF AMERICA, ET AL.
MEMORANDUM OPINION AND ORDER
L. MAZZANT UNITED STATES DISTRICT JUDGE
before the Court is Plaintiff's Motion to Recuse &
Mandatory Disqualifications of Judges Amos Mazzant III &
Magistrate Christine Nowak for Timely “Good Cause
Reasons” & to Stay this Lawsuit (“Motion to
Recuse”) (Dkt. #18). Having considered the relevant
pleadings, the Court finds Plaintiff's Motion to Recuse
(Dkt. #18) should be denied.
filed the Motion to Recuse on August 8, 2017, seeking to
recuse the Court under 28 U.S.C. § 455 and various
Texas statutes (see Dkt. #18). Construing the Motion
to Recuse liberally, the Court discerns pro se
Plaintiff alleges 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 previously
dismissed another, similar case Plaintiff has brought before
the Court; (3) the Court has once warned Plaintiff in another
case that repeated filings in a closed case may result in
sanctions; and (4) 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. #18 at 2, 3, 5, 13-14).
initial matter, the Court notes none of the Texas statutes
and/or Rules of Civil Procedure Plaintiff cites governs
recusal of federal judges. See, e.g., Tex. Gov't
Code § 74.059(governing powers and duties of Texas
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, Plaintiff, as the party moving to recuse, bears
“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, Plaintiff asserts
recusal is appropriate first because the Court withheld
service of process pending review of the Amended Complaint
under the in forma pauperis screening statute, 28
U.S.C. § 1915 (see Dkt. #18 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 pending such screening
in this case.
also seemingly argues recusal is appropriate because the
Court has presided over (and dismissed) another of
Plaintiff's lawsuits filed in the Eastern District of
Texas, namely Balistreri-Amrhein v. Verilli ,
Eastern District of Texas Case No. 4:16-cv-112
(“Amrhein EDTX I”) (see Dkt.
#18 at 2). 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 dismissed Plaintiff's claims
in Amrhein EDTX I on the basis of the law as it
applied to the facts Plaintiff presented in that case.
See Amrhein EDTX I, 4:16-cv-112, Dkt. #133. Other
than this reference-“28 U.S.C. § 455(a)(b)et
seq.Applies [sic] to Above Lawsuit
4:16-CV-00112-ALM-CAN”-Plaintiff provides no
explanation about how the Court's rulings in the
Amrhein EDTX I case have any bearing on the instant
matter. See Parker v. Bd. of Supervisors Univ. of
La.-Lafayette, 270 F. App'x 314, 316 (5th Cir. 2008)
(per curiam) (finding district court did not abuse its
discretion in denying recusal motion where movant
“provided no other source of bias or prejudice against
him personally, or against pro se litigants in general, other
than the district court judge's dismissal of his previous
case”). The Court's consideration and dismissal of
Plaintiff's other case pending in the Eastern District of
Texas does not provide any basis for recusal.
third argument for recusal seemingly rests upon the
Court's admonishment in the Amrhein EDTX I case
that “Plaintiff 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.” 4:16-cv-112, Dkt. #139
at 4. But this admonishment, like the Court's
determination that Plaintiff's claims in Amrhein EDTX
I should be dismissed, 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 [the
Amrhein EDTX I] case[, ]” specifically her
repeated filings for reconsideration after closure of the
case. See Amrhein EDTX I, 4:16-cv-112, Dkt. #139 at
2-3. Such warning was appropriate under the circumstances.
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
after considering her litigation history and filing behavior
before the Northern District of Texas). The Court's
warning to Plaintiff in the Amrhein EDTX I case
provides no basis for recusal.
cites as a fourth reason for recusal the Court's
dismissal of an unrelated civil action involving Defendant
Texas Attorney General Kenneth Paxton: Plaintiff claims the
Court “tossed Defendant Attorney General Paxton
Security Fraud Suit Oct 7, 2016 making ‘favors for
friends'” (Dkt. #18 at 5). Plaintiff insinuates
that the Court has a relationship with Defendant Paxton that
creates an appearance of impropriety (or actual bias) but
alleges 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 plaintiff's 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” & to Stay this Lawsuit
(Dkt. #18) is hereby DENIED.