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Abrams-Jackson v. Avossa

United States District Court, S.D. Florida

December 15, 2017

RAQUEL ABRAMS-JACKSON, Plaintiff,
v.
ROBERT AVOSSA, et al., Defendants.

          DENYING THAT PORTION OF PLAINTIFF'S MOTION AT DOCKET ENTRY 104');">104 WHICH SEEKS TO RECUSE THE UNDERSIGNED UNITED STATES MAGISTRATE JUDGE

          WILLIAM MATTHEAVMAN UNITED STATES MAGISTRATE JUDGE

         THIS CAUSE is before the Court upon the Plaintiff, Raquel Abrams-Jackson's ("Plaintiff) Motion to Recuse the undersigned United States Magistrate Judge, which is contained within Plaintiffs Motion at Docket Entry 104');">104 ("Motion").[1] The Court has carefully reviewed the Motion and the Court's prior Orders, as well the entire docket in this case.

         BACKGROUND

         In the Motion, Plaintiff accuses the undersigned of "extreme bias and prejudice." [DE 104');">104, p. 12]. More specifically, Plaintiff alleges that "[f]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 the Affidavit of Malik Leigh, Esquire, in support of her Motion. [DE 104');">104-2].

         The undersigned has entered the following substantive Orders in this case: Order Setting Discovery Procedure [DE 29]; Order Granting in Part Defendants' Motion for a Protective Order and Denying in Part Plaintiffs Motion to Compel Deposition of Marcia Andrews [DE 41]; 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 48]; Order Granting Defendants' Motion for a Protective Order and Denying Plaintiffs Motion to Compel Deposition of Marcia Andrews [DE 51]; Order Supplementing the Court's Prior Discovery Orders and Addressing Social Media Posts of Attorney Malik Leigh, Esq. [DE 54]; Order Denying Plaintiffs' Motions to Alter or Amend Judgment under Rule 59(e) [DE 74]; Order Awarding Attorney's Fees to the Defendants and Against Mr. Malik Leigh, Esq. [DE 77]; Order Granting in Part and Denying in Part Defendants' Motion for Sanctions and to Strike [DE 94]; and Order Awarding Attorney's Fees to the Defendants and Against Mr. Malik Leigh, Esq., and Danielle Renee Watson, Esq. [DE 98]. The undersigned also held a telephonic discovery hearing on May 30, 2017, and an in-person discovery hearing on June 5, 2017.

         ANALYSIS

         "Two 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.

a. Analysis under 28 U.S.C. § 144
Pursuant 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.

         "A 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 party." Id.

         The Court notes that Plaintiffs Motion was first filed on December 6, 2017, more than one month after final judgment was entered against Plaintiff, 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.

         As to the substance of Plaintiff s Motion, Plaintiffs counsel has submitted an Affidavit [DE 104');">104-2] 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 104');">104-2, ¶¶ 3-5]. Plaintiffs counsel 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 ΒΆ 6. The affidavit is ...


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