United States District Court, S.D. Florida
DENYING THAT PORTION OF PLAINTIFF'S MOTION AT
DOCKET ENTRY 92');">92 WHICH SEEKS TO RECUSE THE UNDERSIGNED UNITED
STATES MAGISTRATE JUDGE
WILLIAM MATTHEWMAN UNITED STATES MAGISTRATE JUDGE.
CAUSE is before the Court upon the Plaintiff, Malik Leigh,
Esq.'s ("Plaintiff) Motion to Recuse the undersigned
United States Magistrate Judge, which is contained within
Plaintiffs Motion at Docket Entry 92');">92
("Motion"). The Court has carefully reviewed the
Motion and the Court's prior Orders, as well the entire
docket in this case.
Motion, Plaintiff accuses the undersigned of "extreme
bias and prejudice." [DE 92');">92, p. 12]. More specifically,
Plaintiff alleges that "[t]he Court's [sic] has
shown bias and prejudice against Attorney Leigh for how he
speaks, his work usage and choice of words, and has connected
them to the Defendants' allegations in their Motions
(protective order and for security) in a way that shows
extreme bias, prejudice, and possibly racial animus."
Id. Plaintiff argues that the undersigned's
"personal loathing of curse words creates a bias towards
those Attorneys who do or have shown to have done so."
Id. at p. 9. Plaintiff has attached an Affidavit
signed by himself in support of his Motion. [DE 92');">92-2].
undersigned has entered the following substantive Orders in
this case: Order Setting Discovery Procedure [DE 35]; Order
Granting in Part Defendants' Motion for a Protective
Order and Denying in Part Plaintiffs Motion to Compel
Deposition of Marcia Andrews [DE 45]; Order on Plaintiffs
Motion to Extend Discovery Deadline and Motion to Compel
Deposition and Defendants' Motion to Suspend and
Reschedule the Deposition of Defendants Avossa and Epps for
Safety Concerns and for Protective Order [DE 52]; Order
Granting Defendants' Motion for a Protective Order and
Denying Plaintiffs Motion to Compel Deposition of Marcia
Andrews [DE 54]; Order Supplementing the Court's Prior
Discovery Orders and Addressing Social Media Posts of
Attorney Malik Leigh, Esq. [DE 58]; Order Denying
Plaintiffs' Motions to Alter or Amend Judgment under Rule
59(e) [DE 73]; Order Awarding Attorney's Fees to the
Defendants and Against Mr. Malik Leigh, Esq. [DE 74]; Order
Granting in Part and Denying in Part Defendants' Motion
for Sanctions and to Strike [DE 87]; and Order Awarding
Attorney's Fees to the Defendants and Against Mr. Malik
Leigh, Esq., and Danielle Renee Watson, Esq. [DE 89]. The
undersigned also held a telephonic discovery hearing on May
30, 2017, and an in-person discovery hearing on June 5, 2017.
federal statutes, 28 U.S.C. §§ 455 and 144, govern
recusal and courts must construe them in pari
materia." Elso v. United States, No. 07-21313, 2010
WL 5013875, *2 (S.D.Fla. Dec.3, 2010); see also Taylor v.
Bradshaw, No. 11-80911-CIV, 2014 WL 5325291, at *1 (S.D.
Fla. Oct. 7, 2014). "Under these statutes, judges are
presumed to be impartial and the movant bears the burden of
demonstrating an objectively reasonable basis for questioning
the judge's impartiality." Id. Plaintiff is
moving to recuse the undersigned pursuant to both 28 U.S.C.
§ 144 and 28 U.S.C. § 455.
Analysis under 28 U.S.C. § 144
to 28 U.S.C. § 144,
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.
Motion to Recuse filed under 28 U.S.C. § 144 is aimed at
recusing a judge for actual bias, as well as the appearance
of impropriety." Elso, 2010 WL 5013875, at *4.
In deciding whether recusal is warranted, the court must
determine "(1) whether a party has made and timely filed
an affidavit; (2) whether the affidavit is accompanied by a
good faith certificate of counsel; and (3) whether the
affidavit is legally sufficient." Id. "To
be legally sufficient, an affidavit must state with
particularity material facts that, if true, would convince a
reasonable person that a personal, rather than judicial, bias
exists against the party or in favor of the adverse
Court notes that Plaintiffs Motion was first filed on
December 6, 2017, one month after the undersigned last issued
any Order in the case and several months after the
undersigned issued the discovery Orders alluded to in the
Motion. The Motion is therefore untimely.
the substance of Plaintiffs Motion, Plaintiff has submitted
an Affidavit [DE 92');">92-2] in which he asserts that the
undersigned has "shown extreme prejudice"; granted
Defendants' request for Order of Protection based on the
"Court's biased, prejudicial, and often manufactured
reasoning"; and has resorted in multiple Orders to
"personal bias, prejudice, and personal animus to
justify its reasons for granting Defendants' Motion for
Protection." [DE 92');">92-2, ¶¶ 3-5]. Plaintiff
further attests that the undersigned, in granting its
"Order of Protection" "misquoted or
purposefully misstated Plaintiffs Counsel's testimony,
ignored evidence to counter claims made by the Defendants,
made personally disparaging statements about Plaintiffs
Counsel, made false, unsubstantiated claims that the
Plaintiffs Counsel committed an overt threat...and accused
Plaintiffs' counsel of repeatedly violating rules of law
when they had not." Id. at ¶ 6. The
affidavit is insufficient ...