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McConnell v. Abeyta

United States District Court, D. Colorado

November 3, 2014

FRANKIE L. McCONNELL, also known as FRANKIE MCCONNELL, Plaintiff,
v.
MICHELLE ABEYTA, LAURA TAFOYA, JOHN SCOLERI, and K. STEENBERGEN, Defendants.

ORDER DENYING MOTIONS TO RECUSE AND RECONSIDER

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, Frankie L. McConnell, filed pro se on October 6, 2014, a letter (ECF No. 9) seeking my recusal and on October 14, 2014, a letter (ECF No. 10) again seeking my recusal and asking to reopen this action. Ms. McConnell disagrees with the order of September 5, 2014 (ECF No. 7), dismissing this action pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and malicious because the action is repetitive of McConnell v. Abeyta, Civil Action No. 14-cv-00274-LTB (D. Colo. Mar. 21, 2014), appeal dismissed for lack of prosecution, No. 14-1171 (10th Cir. June 12, 2014), and pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for her failure to prosecute.

The Court must construe the requests liberally because Ms. McConnell is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). For the reasons discussed below, the motions for my recusal and to reconsider the dismissal of this action will be denied.

The Court first will address Ms. McConnell's requests for my recusal. In the October 6 letter Ms. McConnell asserts, with original grammar and typographical errors, as follows:

I would like ask the Court dismiss Lewis T. Babcock from reside over my case. The reasons as follow he bias he fail to hold these peoples accountable for their action unfairly, unfavorable prejudice with evidence with he dismissed with prejudice, malicious intent. Identifying facts evidence was showing Ms. McConnell wasn't in housing unit. When Abeyta falsity documents her claim that Ms. McConnell, display aggressive behavior. The evidence wasn't allow at her hearing, now it's being dismiss. I was held accountable for my actions. For falsity documents against person.

ECF No. 9 at 1.

In the October 14 letter Ms. McConnell asserts, with original grammar and typographical errors, as follows:

I'm asking the Court to reopen my claim for the follow reason an also dismiss Lewis T. Babcock from my case. He is bias he fail me on several occasion I provide evidence which he overlook total ignore evidence never knowledge documents wasn't allow. Prejudice violate civil rights up held falsity claim Corrections Officer is suppose display honesty, respect and a commitment to professional. Ms. Abeyta unethical behavior and conduct. After Ms. McConnell brought to the attention Admin. Head totally ignore her Abetya continue with her scornful remarks against Ms. McConnell. I was held accountable for my action unfairly unfavorable opinion. Abeyta wrote falsity document against Ms. McConnell which violate her constitutional rights. With grave concern I'm asking the Court to reopen this case.

ECF No. 10 at 1.

Because of Ms. McConnell's pro se status, I will construe the requests for recusal as a motion under 28 U.S.C. § 455, as well as 28 U.S.C. § 144. Plaintiff fails to demonstrate that disqualification is appropriate pursuant to either §§ 144 or 455.

Title 28 U.S.C. § 144 provides a procedure whereby a party to a proceeding may request the judge before whom the matter is pending to recuse himself or herself based on personal bias or prejudice either against the moving party or in favor of any adverse party. Section 144 requires the moving party to submit a timely and sufficient affidavit of personal bias and prejudice. See Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). Rumor, speculation, opinions and the like do not suffice. Id. "The affidavit must state with required particularity the identifying facts of time, place, persons, occasion, and circumstances." Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987). Although the Court must accept the facts alleged in a proper supporting affidavit under § 144 as true, the affidavit is construed strictly against the moving party. See Glass v. Pfeffer, 849 F.2d 1261, 1267 (10th Cir. 1988). The moving party has a substantial burden "to demonstrate that the judge is not impartial." United States v. Burger, 964 F.2d 1065, 1070 (10th Cir. 1992).

Here, Ms. McConnell has failed to satisfy the procedural requirements of 28 U.S.C. § 144 in at least two crucial ways. First, she has failed to file a supporting affidavit that is either sworn to or affirmed. United States v. Peltier, 553 F.Supp. 886, 890 n.10 (D. N.D. 1982); In re Beecher, 50 F.Supp. 530, 531 (E.D. Wash. 1943). In addition, there is no "certificate of counsel of record stating that [the supporting affidavit] is made in good faith." 28 U.S.C. § 144. As the court noted in Williams v. New York City Housing Authority, 287 F.Supp.2d 247, 249 (S.D.N.Y. 2003):

A pro se party cannot supply a certificate of counsel. For this reason, at least one court has concluded that a pro se plaintiff cannot bring an affidavit under 28 U.S.C. § 144. See Robinson v. Gregory, 929 F.Supp. 334, 337-38 (S.D. Ind. 1996). The court in Robinson noted that not only are the requirements of Section 144 strictly enforced, but the requirement for a certificate of counsel of record prevents abuse of the section's procedures.... In addition, the court stated that parties proceeding pro se have other mechanisms available to them to guard against biased or prejudiced judges. Id. (noting that 28 U.S.C. § 455 provides an equally applicable means of protest for pro se litigants). [Plaintiff's] affidavit, which is submitted pro se and without a certificate of counsel of record, fails on this threshold matter.

Accord Glass, 849 F.2d at 1267 (holding that "§ 144 requires an affidavit of bias and prejudice, which must be timely, sufficient, made by a party, and accompanied by ...


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