United States District Court, E.D. Texas, Sherman Division
ORDER AND OPINION
KIMBERLY C. PRIEST JOHNSON, UNITED STATES MAGISTRATE JUDGE
before the Court is pro se Plaintiff Shelley
Soniat's Motion for Recusal (Dkt. 11). For the following
reasons, the Court finds Plaintiff's motion (Dkt. 11) is
previously filed a lawsuit in three separate actions in this
district in 2014. The case was referred to Magistrate Judge
Don D. Bush from Judge Richard Schell (collectively, the
“Judicial Defendants”). Judge Bush denied
Plaintiff's request for the issuance of summons and
recommended Plaintiff's case be dismissed with prejudice
for failure to state a claim. See Soniat v. Jackson,
2014 WL 6968871, at *2, 6 (E.D. Tex. Dec. 9, 2014). Judge
Schell subsequently adopted Judge Bush's report and
dismissed the consolidated action. See Soniat v.
Jackson, 2015 WL 1503650 (E.D. Tex. Mar. 31, 2015).
Plaintiff appealed, but the Fifth Circuit affirmed. See
Soniat v. Jackson, 628 F. App'x 292 (5th Cir. 2016).
Plaintiff filed a petition for a writ of certiorari in the
Supreme Court, but it was denied on May 16, 2016. See
Soniat v. Jackson, 136 S.Ct. 2016, 2016 WL 900300 (May
20, 2016, Plaintiff filed another lawsuit in this district
against the Judicial Defendants and the Department of Housing
and Urban Development (“HUD”). She asserted the
Judicial Defendants discriminated against her by not allowing
her to exercise and enjoy her rights under the Fair Housing
Act. Further, she asserted HUD's policy of deferring to
the Judicial Defendants' discretion and refusing to
respond to her previous lawsuit has a discriminatory effect
on women and minorities. Specifically, Plaintiff claimed
after the Judicial Defendants refused to issue summons in her
previous case, she sent a personal letter to HUD, and it
refused to answer her lawsuit, resulting in a discriminatory
effect. On December 16, 2016, the undersigned entered two
Report and Recommendations recommending Plaintiff's
claims be dismissed against all of the defendants in that
suit, in which the district court adopted on January 6, 2017.
See Soniat v. Dep't of Hous. & Urban Dev.,
2017 WL 68562 (E.D. Tex. Jan. 6, 2017); Soniat v.
Dep't of Hous. & Urban Dev., 2017 WL 73073 (E.D.
Tex. Jan. 6, 2017). That case is currently pending on appeal.
March 6, 2017, Plaintiff filed another action against Texas
Real Estate Commission, Texas Association of Realtors, and
National Association of Realtors. Plaintiff essentially made
the same complaints as she did in her first two lawsuits in
this district. On April 21, 2017, the undersigned
recommended Plaintiff's claims against the Texas
Association and Realtors and National Association of Realtors
be dismissed, in which the district court adopted on May 12,
2017. See Soniat v. Tex. Real Estate Comm'n,
2017 WL 2021323 (E.D. Tex. May 12, 2017). On May 15, 2017,
the undersigned recommended Plaintiff's case against the
Texas Real Estate Commission be dismissed, in which the
district court adopted on June 5, 2017. See Soniat v.
Tex. Real Estate Comm'n, 2017 WL 2426499 (E.D. Tex.
June 5, 2017). That case is currently pending on appeal.
August 17, 2017, Plaintiff filed the instant action against
Carolyn A. Mitchell, alleging essentially the same facts as
those asserted in her previous three lawsuits (Dkt. 1). On
September 19, 2017, Plaintiff filed a motion requesting the
undersigned and District Judge Amos Mazzant recuse themselves
from this case (Dkt. 11).
Code of Judicial Conduct says a “judge shall disqualify
himself or herself in any proceeding in which the judge's
impartiality might reasonably be questioned. . . .”
Code of Judicial Conduct, Canon 2.11. Congress codified
almost identical language in 28 U.S.C. § 455(a):
“Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). The purpose of Section 455(a) is “to
promote confidence in the judiciary by avoiding even the
appearance of impropriety whenever possible.”
Liljeberg v. Health Servs. Acquisition Corp., 486
U.S. 847 (1988). Indeed, the Fifth Circuit further explained
the statute's purpose:
Judicial ethics reinforced by statute exact more than
virtuous behavior; they command impeccable appearance. Purity
of heart is not enough. Judge's robes must be as spotless
as their actual conduct. These expectations extend to those
who make up the contemporary judicial family, the judge's
law clerks and secretaries.
Hall v. Small Bus. Admin., 695 F.2d 175, 176 (5th
Cir. 1983). However, both the legislative history of Section
455(a) and the Fifth Circuit admonish district courts faced
with recusal motions to “be alert to avoid the
possibility that those who would question his impartiality
are in fact seeking to avoid the consequences of his expected
adverse decision.” In re Corrugated Container
Antitrust Litig., 614 F.2d 958, 966 n.18 (5th
Cir. 1980) (quoting the legislative history to Section
455(a)); Switzer v. Berry, 198 F.3d 1255, 1258 (10th
Cir. 2000) (noting Section 455(a) did not intend to give
“litigants a veto power over sitting judges”).
standard under 28 U.S.C. § 455(a) is objective:
“Would the allegedly disqualifying factor cause a
reasonable person to question the
judge's impartiality?” Thurmond v.
Compaq Computer Corp., 2000 WL 33795081, at *2 (Feb. 28,
2000) (citing Liteky v. United States, 510 U.S. 540,
548, 553 n.2 (1994); Levitt v. Univ. of Tex. at El
Paso, 847 F.2d 221, 224-26 (5th Cir. 1988);
Hall, 695 F.2d at 179).