Case 1:05-cv-00006-WLS-RLH Document 26 Filed 08/19/05 Page 1 of 4
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF GEORGIA
`ALBANY DIVISION
`
`:
`:
`
`::
`
`:
`:
`:
`
`::
`
`RICK F. ELLIS,
`
`
`Petitioner,
`
`v.
`
`TRACY STEPHENS, Probation Officer,
`Georgia Department of Corrections,
`
`1:05-CV-6 (WLS)
`
`:
`Respondents.
` :
`
`
`ORDER
`
`Presently pending before the Court is Petitioner’s “Motion to Recuse All Judges and
`
`Magistrate Judges of the Middle District of Georgia from Any Further Involvement in These
`
`Proceeding (sic)” filed May 5, 2005. (Doc. No. 21). For the reasons stated below, Petitioner’s
`
`motion (Doc. No. 21) is DENIED.
`
`I.
`
`DISCUSSION
`
`28 U.S.C. § 455 creates two primary reasons for recusal under Section 455(a) and
`
`Section 455(b). See 28 U.S.C. § 455(a)-(b).
`
`A.
`
`28 U.S.C. § 455(a)
`
`Section 455(a) provides, in pertinent part, “[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 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). The standard of review for a Section
`
`1
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF GEORGIA
`ALBANY DIVISION
`
`:
`:
`
`::
`
`:
`:
`:
`
`::
`
`RICK F. ELLIS,
`
`
`Petitioner,
`
`v.
`
`TRACY STEPHENS, Probation Officer,
`Georgia Department of Corrections,
`
`1:05-CV-6 (WLS)
`
`:
`Respondents.
` :
`
`
`ORDER
`
`Presently pending before the Court is Petitioner’s “Motion to Recuse All Judges and
`
`Magistrate Judges of the Middle District of Georgia from Any Further Involvement in These
`
`Proceeding (sic)” filed May 5, 2005. (Doc. No. 21). For the reasons stated below, Petitioner’s
`
`motion (Doc. No. 21) is DENIED.
`
`I.
`
`DISCUSSION
`
`28 U.S.C. § 455 creates two primary reasons for recusal under Section 455(a) and
`
`Section 455(b). See 28 U.S.C. § 455(a)-(b).
`
`A.
`
`28 U.S.C. § 455(a)
`
`Section 455(a) provides, in pertinent part, “[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 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). The standard of review for a Section
`
`1
`
`
`
`Case 1:05-cv-00006-WLS-RLH Document 26 Filed 08/19/05 Page 2 of 4
`
`455(a) motion “is whether an objective, disinterested, lay observer fully informed of the facts
`
`underlying the grounds on which recusal was sought would entertain a significant doubt about
`
`the judge’s impartiality.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988).
`
`The Supreme Court has held that a significant and often “determinative” factor in these
`
`cases is the “extrajudicial source” doctrine. Liteky v. United States, 510 U.S. 540, 555 (1994).
`
`Under this doctrine, the alleged bias must stem from information that the judge has gained from
`
`outside the judicial context. In the Eleventh Circuit, “[t]he general rule is that bias sufficient to
`
`disqualify a judge must stem from extrajudicial sources, and must be focused against a party to
`
`the proceedings. An exception to this rule is made when a judge’s remarks in a judicial context
`
`demonstrate such pervasive bias and prejudice that it constitutes bias against a party.” Hamm v.
`
`Members of the Bd. of Regents, 708 F.2d 647, 651 (11th Cir. 1983)(internal citations omitted).
`
`The Eleventh Circuit has also stated that “[j]udges must not recuse themselves for imaginary
`
`reasons; judge shopping should not be encouraged.” Murray v. Scott, 253 F.3d 1308, 1313 (11th
`
`Cir. 2001).
`
`In the instant action, Petitioner’s allegations of facts focus entirely on United States
`
`Magistrate Judge Faircloth who is not appointed to this case for any purpose. There are no
`
`facts alleged in Petitioner’s motion that relate specifically to any other judge in the Middle
`
`District, and in particular that allege that the undersigned or United States Magistrate Judge
`
`Richard L. Hodge are basing rulings or decisions on sources outside the judicial context.
`
`Petitioner does not point to any facts that show either has made remarks in a judicial context
`
`that would demonstrate a pervasive bias or prejudice which would warrant recusal.
`
`“The decision whether a judge’s impartiality can reasonably be questioned is to be made
`
`2
`
`
`
`Case 1:05-cv-00006-WLS-RLH Document 26 Filed 08/19/05 Page 3 of 4
`
`in light of the facts as they existed, and not as they were surmised or reported.” Cheney v. U.S.
`
`Dist. Court for Dist. of Columbia, 541 U.S. 913, —,124 S.Ct. 1391, 1392 (2004)(citing
`
`Microsoft Corp. v. United States, 530 U.S. 1301, 1302 (2000)(Rehnquist, C.J., respecting
`
`recusal))(internal quotations omitted). The facts as they exist are as follows: there are District
`
`Judges and Magistrate Judges who sit for the United States District Court for the Middle
`
`District of Georgia and said judges must associate daily with one another as part of the ordinary
`
`course of the Court’s business. The undersigned and the United States Magistrate Judge
`
`Richard L. Hodge are not required to recuse themselves for such relationships even if they rise
`
`to the level of a friendship, an allegation never made by Petitioner. See Andrade v. Chojnacki,
`
`338 F.3d 448 (5th Cir. 2003)(where United States District Judge Smith was not required to
`
`recuse himself because of a prior relationship with William Sessions, former Director of the
`
`Federal Bureau of Investigation, who was a dismissed defendant from the case and who Judge
`
`Smith had served with while Sessions was Chief Judge). See also Cheney v. U.S. Dist. Court
`
`for Dist. of Columbia, 541 U.S. at 913 (where the Supreme Court Justice was not required to
`
`recuse himself because of a friendship with the litigant, Dick Cheney, Vice President of the
`
`United States). Petitioner has stated no facts which objectively suggest or require recusal of
`
`either judge. Therefore, Petitioner’s motion (Doc. No. 21) should be, and hereby is, DENIED
`
`as it relates to 28 U.S.C. § 455(a).
`
`B.
`
`28 U.S.C. § 455(b)
`
`28 U.S.C § 455(b)(1-5) enumerates certain instances where recusal is required; with
`
`subsection (1) covering bias and prejudice grounds and subsections (2-5) covering interest and
`
`relationship grounds. See 28 U.S.C. § 455(b)(1-5); see also Liteky v. United States, 510 U.S.
`
`3
`
`
`
`Case 1:05-cv-00006-WLS-RLH Document 26 Filed 08/19/05 Page 4 of 4
`
`540, 547-48 (1994). Recusal under this subsection is mandatory because “the potential for
`
`conflicts of interest are readily apparent.” Murray v. Scott, 253 F.3d at 1312. (11th Cir. 2001)
`
`(internal quotation marks omitted). Plaintiff has not presented any facts that would mandate
`
`recusal by either the undersigned or United States Magistrate Judge Richard L. Hodge for either
`
`bias and prejudice grounds or interest and relationship grounds. Essentially, Petitioner merely
`
`cites to rulings not favorable to Petitioner. Such reviewable rulings alone are inadequate to
`
`require recusal. Therefore, Petitioner’s motion (Doc. No. 21) should be, and hereby is,
`
`DENIED as it relates to 28 U.S.C. § 455(b).
`
`II.
`
`CONCLUSION
`
`Petitioner’s “Motion to Recuse All Judges and Magistrate Judges of the Middle District
`
`of Georgia from Any Further Involvement in These Proceeding (sic)” (Doc. No. 21) should be,
`
`and hereby is, DENIED.
`
`
`
`SO ORDERED, this 19th day of August, 2005.
`
` /s/W. Louis Sands
`W. LOUIS SANDS, CHIEF JUDGE
`UNITED STATES DISTRICT COURT
`
`4
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
