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Kidd v. Shoop

United States District Court, S.D. Ohio, Western Division

June 12, 2018

DAVID E. KIDD, Petitioner,
TIM SHOOP, Warden, Chillicothe Correctional Institution Respondent.

          Thomas M. Rose District Judge



         This habeas corpus case is before the Court on Petitioner's Affidavit/Motion to Disqualify (ECF No. 13). A motion to recuse or disqualify is in federal court always to be considered in the first instance by the judge sought to be removed.

         As grounds for disqualification, Petitioner asserts that

[I]n every instance where a pro se litigant has brought to the attention of the Federal Courts some instance where Judge Rastatter has been an active participant in the State Court proceedings, Magistrate Judge Merz has decided that the Claims should be summarily dismissed at his stage of the Proceedings, DENYING PETITIONER ACCESS TO THIS COURT.

         The procedure for disqualifying a federal judge is well established. Under 28 U.S.C. § 144 the party seeking disqualification must make an affidavit of personal bias or prejudice, accompanied by his counsel's certificate that the affidavit is made in good faith. When a party is proceeding pro se, no counsel's certificate is required. While the affidavit is directed in the first instance to the judicial officer sought to be disqualified, if it is timely and legally sufficient, recusal is mandatory; the truth of the facts set forth in the affidavit are not drawn in question, but only their legal sufficiency. 13A C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters 2d, §§ 3541, et seq., particularly § 3550. To be legally sufficient under § 144, assertions in an affidavit must be definite as to time, place, persons, and circumstances. Berger v. United States, 255 U.S. 22, 34-35 (1921). Such detail is necessary to prevent abuse of § 144. Grimes v. United States, 396 F.2d 331 (9th Cir. 1968). One distinguished court has held that the appropriate level of detail is the same as required in a bill of particulars. United States v. Mitchell, 377 F.Supp. 1312, 1316 (D.C. 1974)(Sirica, J.), aff'd. sub. nom. United States v. Haldeman, 559 F.2d 31 (D.C. Cir. 1976).

         A disqualifying prejudice or bias must ordinarily be personal or extrajudicial. United States v. Sammons, 918 F.2d 592, 598 (6th Cir. 1990); Wheeler v. Southland Corp., 875 F.2d 1246, 1250 (6th Cir. 1989). That is, it "must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case." United States v. Grinnell Corp., 384 U.S. 563, 583 (1966); see also Youn v. Track, Inc., 324 F.3d 409, 423 (6th Cir. 2003), citing Grinnell, supra; Bradley v. Milliken, 620 F.2d 1143, 1157 (6th Cir. 1980), citing Grinnell, supra; Woodruff v. Tomlin, 593 F.2d 33, 44 (6th Cir. 1979) (citation omitted). The Supreme Court has written:

The fact that an opinion held by a judge derives from a source outside judicial proceedings is not a necessary condition for ‘bias and prejudice' recusal, since predispositions developed during the course of a trial will sometimes (albeit rarely) suffice. Nor is it a sufficient condition for ‘bias and prejudice' recusal, since some opinions acquired outside the context of judicial proceedings (for example, the judge's view of the law acquired in scholarly reading) will not suffice. ... [J]udicial rulings alone almost never constitute valid basis for a bias or partiality motion. See United States v. Grinnell Corp., 384 U.S. [563, ] . . . 583, 86 S.Ct. [1698, ] . . . 1710 (1966). ... Second, 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.”

Liteky v. United States, 510 U.S. 540, 554-55 (1994); see also Alley v. Bell, 307 F.3d 380, 388 (6th Cir. 2002)(quoting the deep-seated favoritism or antagonism standard).

         Petitioner's Affidavit contains no fact showing a personal bias or prejudice against him or in favor of Judge Rastatter. In fact, I have never met either man or had any dealings with either one except in the course of performing my judicial duties for this Court. Petitioner's Affidavit/Motion is legally insufficient in that it contains no facts relating to any personal or extrajudicial bias.

         The Motion contains no additional facts, but the contemporaneously filed Opposition to Second Supplemental Report and Recommendations (ECF No. 12) lists the following cases as those to which Petitioner refers:

Gunnell v. Rastatter, 2008 U.S. Dist. LEXIS 118428 (S.D. Ohio Sept. 17, 2008), aff'd., 2010 U.S. App. LEXIS 19819 (6th Cir. 2010) Kidd v. Shoop, 2018 U.S. Dist. LEXIS 66620(S.D. Ohio May 3, 2018) - this case.
Dever v. Kelly, 566 F.Supp.2d 703 (S.D. Ohio 2008) - adopted by Judge Rose.
Eggers v. Warden, 2015 U.S. Dist. LEXIS 70546 (S.D. Ohio Jun. 1, 2015) - adopted by Judge Rose at 2015 U.S. Dist. LEXIS 103291 (S.D. Ohio Aug. 6, 2015), aff'd 2016 U.S. ...

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