United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE UNITED STATES DISTRICT JUDGE.
the Court is Defendant's pro se Motion to
Reconsider Motion to Disqualify the Honorable James D.
Whittemore (Dkt. 139). The motion is legally insufficient and
therefore provides no valid basis for
disqualification. The motion is DENIED.
should disqualify himself only if areasonable person would
question his impartiality. Giles v. Garwood, 853
F.2d 876, 878 (11th Cir. 1988), cert, denied, 499
U.S. 1030 (1989). "The bias must arise from an
extrajudicial source, except in the rare case 'where such
pervasive bias and prejudice is shown by otherwise judicial
conduct as would constitute bias against a party."'
Id., quoting Davis v. Board of School Commissioners,
517' F..2d 1044, 1052 (5th Cir. 1975), cert,
denied, 425 U.S. 944(1976)).
§ 455(a), a sufficient basis for disqualification exists
when "an objective, disinterested, lay observer folly
informed of the facts underlying the grounds on which recusal
was sought would entertain a significant doubt about the
judge's impartiality." Parker v. Connors Steel
Co., 855 F.2d 1510, 1524 (11th Cir. 1988). Actual
prejudice need not be shown, as § 445 was intended to
"promote public confidence in the impartiality of the
courts by eliminating even the appearance of
impropriety." United States v. Alabama, 828
F.2d 1532, 1541 (11th Cir.), cert,
denied, 487 U.S. 1210 (1988).
to the extent he again complains about the denial of his
motion to dismiss, '"adverse rulings alone do not
provide a party with a basis for holding that the court's
impartiality is in doub'" See Lawal v. RTM,
260Fed.Appx. 149, 152 (11 th Cir. 2006) (quoting Byrne v.
Nezhat, 261 F.3d 1075, 1103 (11th
Cir.2001)). Second, the comments directed to him
during the November 2, 2017 status conference do not support
disqualification, whether on the basis of personal bias or
prejudice or because the undersigned's impartiality might
reasonably be questioned.
case was scheduled for trial on the November 2017 calendar.
Less than two weeks before the status conference, CJA counsel
Tim Fitzgerald had been reappointed at Defendant's
request. (Dkts. 117, 122). In June, Fitzgerald had been
discharged at Defendant's request, the circumstances for
which are explained in the Magistrate Judge's June 8,
2017 Order (Dkt. 85). The status conference was scheduled at
Fitzgerald's request because of the voluminous discovery
he had not been able to review because of his discharge.
Defendant had been warned by the undersigned and the
Magistrate Judge that he would be deemed to have waived the
right to counsel if he continued to find fault with appointed
counsel, that is exactly what was about to occur when the
complained of remarks were made. During the status
conference, he tendered yet another motion to discharge
Fitzgerald, prompting the -comment that if the motion was
Filed, it would be granted and the case called up for
his history of dissatisfaction with counsel, his recent
request to have Fitzgerald reappointed, and his intent to
file yet another motion to discharge Fitzgerald on the eve of
trial, the undersigned's impartiality cannot reasonably
be questioned as a result of the comments advising him that
the motion would be granted if filed, and the case called up
for trial immediately. And they do not evidence the type of
personal bias or prejudice sufficient to warrant
question is whether comments made "in a judicial context
demonstrate such pervasive bias and prejudice that it
constitutes bias against a party." Davis v. Board of
School Commissioners of Mobile County, 517 F.2d 1044,
1051 (5th Cir.1975), cert, denied, 425 U.S. 944,
1976). But a judge is not subject to disqualification for
bias and prejudice as a result of comments made based on what
the judge "properly and necessarily acquired in the
course of the proceedings, and are indeed sometimes ()
necessary to completion of the judge's task, "
unless "so extreme as to display clear inability to
render fair judgment." Liteky v. United States,
510 U.S. 540, 551, 114 S.Ct. 1147, 1155, 127 L.Ed.2d 474
(1994). And as has been observed, "Not
establishing bias or partiality, however, are expressions of
impatience, dissatisfaction, annoyance, and even anger, that
are within the bounds of what imperfect men and women, even
after having been confirmed as federal judges, sometimes
display. A judge's ordinary efforts at courtroom
administration-even a stern and short-tempered judge's
ordinary efforts at courtroom administration-remain
immune." Id. at 555-56 (emphasis in original).
follows that the comment that Defendant was attempting to
manipulate the system by seeking to once again discharge his
CJA attorney, who had just been reappointed at his request,
was born out of the proceedings, not any personal bias or
prejudice toward Defendant. The several Orders describing
Defendant's difficulties with his lawyers and efforts to
discharge them best illustrate the circumstances underlying
the comment. (Dkts. 21, 42, 78, 85, 95, 103, 111, 123). As
the Magistrate Judge explained:
As the June 8 Order details, the Defendant has been
unflinchingly uncooperative with his lawyers. He rejected his
first court-appointed lawyer; hired a second, presumably
through family resources; and, in quick order, filed a bar
grievance against the second, then asked the Court to appoint
a third lawyer. When the Court allowed the substitution, he
next refused to cooperate with the third (Mr. Fitzgerald),
moving for a fourth lawyer. When that ...