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Wardlaw v. City of Philadelphia

July 24, 2009

EMILY WARDLAW
v.
CITY OF PHILADELPHIA



The opinion of the court was delivered by: Norma L. Shapiro, S.J.

MEMORANDUM

On July 9, 2009, plaintiff, now representing herself pro se, filed a "Request for the Honorable Norma L. Shapiro to Recrue [sic] from this case;" the court is treating plaintiff's filing as a motion for recusal under both 28 U.S.C. § 144 and 28 U.S.C. § 455. The complaint in this case was filed on July 18, 2005 (Paper #3). A series of requests for postponement, for settlement discussions, delays for change of counsel, and attempts to appoint substitute counsel led the court to determine it was important to bring this matter to a conclusion. Motions in limine are pending, but the motion for recusal must be decided before the court acts on any other pending matter. Under either § 144 or § 455, plaintiff's motion must be denied.

Title 28 U.S.C. § 144 states:

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 judgeshall 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 mere filing of an affidavit under § 144 does not automatically disqualify a judge from hearing a case. Comer v. The Board's Legal Department, The School District of Philadelphia, No. 84-3206, Slip Op. at 2 (E.D.Pa. August 28, 1986); Resident Advisory Board v. Rizzo, 510 F. Supp. 793 (E.D.Pa. 1981). Rather, the movant must make a three-fold showing: 1) the facts must be material and stated with particularity; 2) the facts must be such that if true they would convince a reasonable man that a bias exists; and 3) the facts must show the bias is personal, as opposed to judicial in nature. United States v. Thompson, 483 F.2d 527, 528 (3d Cir. 1973).

A judge facing a claim under 28 U.S.C. § 144 may pass only on the legal sufficiency of the facts alleged in the affidavit; a judge may not question the truth of the allegations or the good faith of the pleader. United States v. Townsend, 478 F.2d 1072, 1073 (3d Cir. 1973). In the instant case, it is clear plaintiff has not followed the statutory procedure. There has been no timely affidavit nor is it accompanied by a certificate of counsel of record or any certificate stating it is made in good faith as required by § 144.

Since plaintiff appears pro se, her motion considered under § 144 is not denied solely for this reason. It is also denied because plaintiff has failed to allege any specific facts that would lead a reasonable person to believe the court is personally biased against her or to support a reasonable suspicion of bias; plaintiff's averments deal only in generalities, some of which do not pertain to conduct of this judge. Plaintiff's motion under 28 U.S.C. § 144 fails for this reason.

A motion for recusal may also arise under 28 U.S.C.A. § 455. This section provides in part:

(a) Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify from the case in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party. . . .

A judge is obligated to recuse herself whenever any of the circumstances described in § 455 arise. Section 455 requires no motion or affidavit.

The Supreme Court has held that when a party moves for a judge's recusal based solely on the judge's conduct or statements within the context of the litigation itself, without identifying any possible extra-judicial sources of bias or prejudice, recusal is not appropriate unless the judge's opinions and remarks reveal a "deep-seated" or "high degree" of "favoritism or antagonism that would make fair judgment impossible." Liteky v. U.S., 510 U.S. 540, 555-56 (1994). A judge's unfavorable predisposition may be considered a bias or prejudice, but any predisposition ...


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