United States District Court, District of Columbia
RICHARD M. GABLE, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
G.
MICHAEL HARVEY, UNITED STATES MAGISTRATE JUDGE
This is
a long-running dispute in which Richard M. Gable
(“Plaintiff”), who currently proceeds pro
se, has brought an action against the United States of
America (“Defendant”) under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. §§ 1346,
2674 et seq., alleging medical malpractice and other
injuries arising from an amputation performed on his left leg
at a hospital operated by the Department of Veterans Affairs
(the “V.A.”) in August 2006. The matter was
referred to the undersigned for full case management in
February 2015. Since that time, the undersigned has issued
several rulings, including a Report and Recommendation that
found that, based on the date that Plaintiff filed his
administrative claim with the V.A., any of his claims
accruing prior to September 16, 2006, should be dismissed.
ECF No. 108. Judge Rosemary M. Collyer adopted that Report
and Recommendation in June 2018. See Gable v. United
States, 319 F.Supp.3d 37 (D.D.C. 2018).
On
November 21, 2018, Plaintiff filed a submission styled,
“Motion for a Venue Change and the Disqualification of
the Honorable Judge Harvey: 1) Due to Partiality and Bias of
the Honorable Judge for the Following Infractions.” ECF
No. 149. The undersigned construes the motion as seeking his
recusal/disqualification pursuant to 28 U.S.C. §§
144 and 455.[1]
Section 144 provides:
Whenever a party to any proceeding in a district court makes
and files 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, such judge shall proceed no further therein, but
another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not
less than ten days before the beginning of the term at which
the proceeding is to be heard, or good cause shall be shown
for failure to file it within such time. A party may file
only one such affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating that it is made
in good faith.
28 U.S.C. § 144. Pursuant to section 455, “Any
justice, judge, or magistrate judge of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned” or in
which he “has a personal bias of prejudice against a
party, ” among other reasons. 28 U.S.C. § 455(a),
(b)(1). Under either statute, the judge involved should rule,
in the first instance, on the propriety of recusal. See,
e.g., United States v. Haldeman, 559 F.2d 31,
131 (D.C. Cir. 1976) (“It is well settled that the
involved judge has the prerogative, if indeed not the duty,
of passing on the legal sufficiency of a Section 144
challenge.”); United States v. Fiat Motors of North
America, Inc., 512 F.Supp. 247 (D.D.C. 1981)
(“Section 455(a) places a duty upon a judge to
disqualify himself ‘in any proceeding in which his
impartiality might reasonably be questioned.'”
(quoting 28 U.S.C. § 455(a))). Although section 144 has
certain procedural requirements not included in section 455,
[2]
“substantively, the two statutes are quite similar, if
not identical.” Ryan v. Fed. Bureau of
Investigation, 125 F.Supp.3d 1, 2 (D.D.C. 2015) (quoting
Phillips v. Joint Legis. Comm. on Performance and
Expenditure Rev. of State of Miss., 637 F.2d 1014, 1019
(5th Cir. Unit A Feb. 1981)).
The
Supreme Court has made clear that “judicial rulings
alone almost never constitute a valid basis for a bias or
partiality motion.” Liteky v. United States,
510 U.S. 540, 555 (1994). Rather, a litigant moving for
recusal “must demonstrate the court's reliance on
an ‘extrajudicial source' that creates an
appearance of partiality, ” Middlebrooks v. St.
Coletta of Greater Washington, Inc., 710 F.Supp.2d 77,
78 (D.D.C. 2010), aff'd, 2011 WL 1770464 (D.C.
Cir. Apr. 4, 2011); see also Liberty Lobby, Inc. v. Dow
Jones & Co., 838 F.2d 1287, 1301 (D.C. Cir. 1988)
(“It is well settled that a motion for recusal under 28
U.S.C. § 144 or § 455 must be based upon prejudice
from an extra-judicial source.”), for example, a
decision that “rests upon knowledge that the subject
ought not to possess, ” Liteky, 510 U.S. at
550. Alternatively, recusal may be appropriate “in rare
cases, where no extrajudicial source is involved” if
the movant presents evidence showing “a deep-seated
favoritism or antagonism that would make fair judgment
impossible, ” Middlebrooks, 710 F.Supp.2d at
78, such as when “an unfavorable predisposition”
that “springs from the facts adduced” during the
case “is so extreme as to display clear inability to
render fair judgment, ” Liteky, 510 U.S. at
550. However, “[a] judge should not recuse himself
based upon conclusory, unsupported or tenuous allegations,
” Sataki v. Broadcasting Bd. of Governors, 733
F.Supp.2d 54, 66 (D.D.C. 2010) (quoting Panahi v. U.S.
Congress, 105 Fed.Appx. 270, 274 (D.C. Cir. 2004) (per
curiam)), and, as noted, “mere disagreement with the
Court's judicial rulings” will never “provide
a proper ground for recusal.” Klayman. 744
F.Supp.2d at 276.
The
undersigned has reviewed all 33 pages of the motion at issue
and concludes that its arguments for recusal arise merely
from Plaintiff's disagreement with the rulings of this
Court. For example, Plaintiff alleges that in 2015, the
undersigned “never caused the defense to turn in key
and critical pieces of evidence” that Defendant was
ordered to produce by Judge Collyer in 2013. ECF No. 149 at
21-22. This charge appears to be related to a motion from
January 1, 2014, in which Plaintiff sought to “compel
the defense to produce” medical records as allegedly
ordered by Judge Collyer “back in November 5th 2013,
” which the undersigned denied on July 31,
2015.[3]ECF No. 40 at 1; Minute Order dated July
31, 2015. There is no evidence or argument as to how that
ruling is the product of bias based on an extrajudicial
source or antagonism directed at Plaintiff. Similarly,
Plaintiff complains that the Court misinterpreted evidence
that he presented as to the date on which he filed his
administrative claim with the V.A., which led to the
recommendation to dismiss any claims that accrued prior to
September 16, 2006, as time-barred. ECF No. 149 at 18-19.
Again, there is neither evidence nor argument that indicates
that the ruling was the product of bias or
prejudice.[4] The same is true of the other alleged
“[i]nfractions” that are the subject of
Plaintiff's submission. Plaintiff's motion therefore
must fail, because “while . . . dissatisfaction with
the Court's rulings may provide a proper ground for
appeal, . . . mere disagreement with the Court's judicial
rulings does not provide a proper ground for recusal.”
Sataki, 733 F.Supp.2d at 66.
For the
reasons, Plaintiffs motion for disqualification (ECF No. 149)
is DENIED.
SO
ORDERED.
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Notes:
[1] Although the title of the submission
mentions a venue change, the motion does not ask for a
transfer of the case out of this District. Instead, it
appears that Plaintiff seeks only ...