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Atwell v. Dean

June 14, 2006

ATWELL
v.
DEAN, ET AL.
ATWELL
v.
METTERAN, ET AL.
ATWELL
v.
SCHWEIKER, ET AL.



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

MEMORANDUM AND ORDER

I. Background

Before the court are three cases filed by Plaintiff. On June 7, 2006, Plaintiff filed a motion in each case entitled "Motion with Supporting Affidavit for the Dismissal of Assigned District Court Judge for this Action . . . ." Each motion cites 28 U.S.C. §§ 144, 455(a) and 455(b)(1) as the bases for the motions.

II. Discussion

A. Title 28 U.S.C. § 144

Title 28 U.S.C. § 144 reads as follows:

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.

The court will deem the filing timely but no affidavit of good faith accompanies the motion. The court will, however, address the portion of the motion based on § 144 on the merits.

In reviewing a section 144 affidavit the court must not pass on the factual merit of any allegation but must restrict its analysis to the legal sufficiency of the allegation. United States v. Rankin, 870 F.2d 109, 110 (3d Cir. 1989); United States v. Boffa, 513 F. Supp. 505 (D.C. Del. 1981). An affidavit will be deemed sufficient only if it gives fair support to a charge of bent of mind that may prevent or impede impartiality of judgment. King v. United States, 434 F. Supp. 1141 (N.D.N.Y. 1977), aff'd, 576 F.2d 432 (2nd Cir. 1978), cert. denied, 439 U.S. 850 (1978). For bias to exist it must be personal and stem from extra-judicial sources. United States v. Balistrieri, 779 F.2d 1191, 1199 (7th Cir. 1985). The bias must be grounded in some personal animus or malice which the judge harbors against a party. In addition, the facts averred must be sufficiently definite and particular to convince a reasonable person that bias exists; simple conclusions, opinions or rumors are insufficient. United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (citation omitted).

Petitioner's allegations of bias are that this court (1) has made adverse rulings against him in other cases; (2) has a conflict of interest; (3) rules against petitioner in retaliation for a previous judicial complaint filed with the Third Circuit against this judge; and (4) the Third Circuit has remanded previous decisions related to Petitioner's cases.

1. Previous Adverse Rulings

In Liteky v. United States, 510 U.S. 540 (1990), the United States Supreme Court stated that "opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or 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." Id. at 555. See also Molinero v. Hart Electronics Corp., 516 F. Supp. 19 (M.D. Pa. 1981), ...


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