Huff v. City of Brookings Police Department et al

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
*
REGGIE D. HUFF, * CIV 22-4020
*
Plaintiff, *
vs. * ORDER ON
CITY OF BROOKINGS POLICE DEPT.;
DAWN M. ELSHERE;
DAVID ERICKSON; JOEL PERRY;
SEAN DOREMUS;
MARISSA D. MARSHALL;
RICHELLE GUERRIERI;
THE SDSU FOUNDAITON;
JOHN &/or JOHN DOES,
Defendants.
and
DAWN M.ELSHERE,
MOTIONS TO RECUSE
Nominal Defendant *
*
PlaintiffHuffmoves the Court to recuse on the basis of28 U.S.C.§ 144 and 28 U.S.C. § 455.
The Court entered its Memorandum Opinion and Order dismissing Plaintiffs federal claims
on July 6,2022. The case was dismissed without prejudice to Plaintiffs right to refile the remaining
state-law claims in state court within thirty (30) days from the date of the Order, unless state law
provided a longer period in which state law claims could be made. Prior to the Memorandum
Opinion no request to recuse had been made. This case was filed on February 14, 2022, with the
judge case assignment made available to Plaintiff that day.
Plaintiffthen filed subsequent motions including a Motion to Vacate under Rule 59(e). The
Court denied the Motion to Vacate on December 12, 2022. Subsequent to that time Plaintiff has
filed 17 pleadings and two letters with the Court,much of which deals with recusal. After reviewing
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the court file, the Court concludes that recusal is not warranted.
DISCUSSION
With regard to 28 U.S.C. § 144, no showing has been made that the judge before whom the
case is pending has a personal bias or prejudice against the Plaintiffor in favor ofany ofthe adverse
parties or their attorneys. There is a frivolous claim with no support that the Judge is colluding
against Plaintiff with an attorney for some of the Defendants.
In addition to the fact that no basis has been shown for the 28 U.S.C. § 144 claim,the claim
is also untimely. The affidavit stating "the facts and the reasons for the beliefthat bias or prejudice
exists . . . 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." 28
U.S.C. § 144. No good cause showing was made as to why the filing was not timely made. Thecase
was filed and assigned on February 14, 2022.
28 U.S.C. § 455 by comparison has no specific limitation on timeliness. The applicable
section (a) of § 455 provides "Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned."
Despite the lack of a ten (10) day limitation, "claims under § 455 will not he considered unless
timely made." In re Kansas Public Employees Retirement System, 85 F.3d 1353, 1360,(8th Cir.
1996). "A party cannot wait until an unfavorablejudgment is issued and then seek to have thejudge
who issued the judgment recused." Rindahl v. Daugaard, No. CIV. 11-4085-Schreier, 2012 WL
174798 at 1 (D.S.D. Jan. 20, 2012).
And that is what this case has become. No request or grounds for recusal was brought until
after an adverse ruling was made dismissing the federal claims. In denying a motion to recuse,
another judge ended with:
Although a judge should disqualify himself or herself in an appropriate case, the
integrity ofthe judicial system demands that ajudge must also have the fortitude to
refuse to disqualify when recusal is not mandated by the facts. Motions to recuse
cannot be viewed as an additional arrow in the quiver of advocates in the face of
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adverse rulings.
TV Communications Network, Inc. v. ESPN, Inc., 767 F.Supp. 1077, 1081 (D. Colo. 1991). This
language was adopted by the Eighth Circuit Court ofAppeals In re Kansas Public Utility Employees
Retirement System. See 85 F.3d at 1360.
In the present case, the facts do not warrant recusal. The Court is only aware ofthe facts as
presented in the Court record. Decisions have been made by the Court on the basis of those facts
and the law. No favoritism or antagonism has been shown by Plaintiffthat would warrant recusal.
"As grounds for disqualification set out in the statutes are quite similar, both may be
considered together." United States v. Paul,748 F.2d 1204, 1210(8th Cir. 1985). The Paul court
went on to require:
To be legally sufficient,an affidavit must allege bias or prejudice,and such "bias and
prejudice to be disqualifying 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, 86
S.Ct. 1698, 1710,16 L.Ed.2d 778 (1966).
No such showing has been made by Plaintiff and the Motions to Recuse are denied.
IT IS ORDERED:
1. That Plaintiffs Motion to Recuse, Doc. 92, is denied,
2. That Plaintiffs Motion to Disqualify, Doc. 104, is denied.
Dated this ((^day of January, 2023.
BY THE COURT:
iwrence L. Piersol
ATTEST: Tjnited States District Judge
MATTHEW W. THELEN,CLERK
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