United States District Court, S.D. Ohio, Western Division
DAVID E. KIDD, Petitioner,
TIM SHOOP, Warden, Chillicothe Correctional Institution Respondent.
M. Rose District Judge
ORDER DENYING MOTION TO DISQUALIFY
MICHAEL R. MERZ, UNITED STATES MAGISTRATE JUDGE
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
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.
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).
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).
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.
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.