United States District Court, W.D. Louisiana, Alexandria Division
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE
the Court is a Motion to Recuse (Doc. 23) filed by Plaintiff,
Marco Damon Duncan (“Duncan”). In a declaration
supporting his Motion, Duncan claims that the undersigned
should be recused because: (1) the undersigned recently
presided over pretrial matters in a related criminal case
which resulted in Duncan's acquittal, Docket No.
1:17-cr-00106-02; (2) because the undersigned has so
presided, the undersigned has become biased against Duncan,
and; (3) the undersigned has engaged in “dilatory and
other oppressive conduct” against Duncan in this case,
specifically in denying Duncan appointment of counsel,
instructing Duncan to amend his complaint, and in allegedly
referring to information related to Duncan's criminal
proceeding in rulings herein.
is no actual or perceived bias against Duncan. And neither
the undersigned's rulings nor the undersigned's
participation in Duncan's criminal case warrant recusal,
as a matter of fact or law. Therefore, Duncan's motion
should be denied in all respects.
case, Duncan alleges, in part, that he was subjected to
excessive force following a January 13, 2017 confrontation
with a correctional officer at the United States Penitentiary
in Pollock, Louisiana (“USP-Pollock”). Duncan
originally filed suit on December 11, 2017. (Doc. 1).
Duncan's original complaint was deficient, as it was not
submitted on approved forms. Accordingly, Duncan was
instructed to amend his complaint to correct that deficiency.
(Doc. 7). He did so. (Doc. 8).
February 2018, the undersigned ordered Duncan to amend his
complaint to clarify his allegations in several respects.
(Docs. 14, 15). Duncan filed his amended complaint on March
5, 2018. (Doc. 20). Eight days later, Duncan submitted a
letter requesting expedited service of process. (Doc. 21). On
March 15, 2018, the undersigned denied that request as
premature, noting that the Amended Complaint was under
initial review. Apart from the pending Motion to Recuse, and
a recent ruling denying a “Motion to Expedite Initial
Screening” (Docs. 29, 30), no other substantive rulings
have been made in this case.
Duncan was also facing charges in a criminal proceeding which
arose from the January 13, 2017 confrontation. (Docket No.
1:17-cr-00106). Duncan and his co-defendant Charles Lee White
(“White”) were each charged with attempted first
degree murder of a federal employee under 18 U.S.C. §
1114. In the criminal matter, the undersigned presided at
Duncan's initial appearance and arraignment (Doc. 19);
granted Duncan's Motion for Bill of Particulars (Doc.
34); and heard a motion to suppress (Doc. 90) filed by Duncan
hearing on Duncan's motion to suppress took place on
March 20, 2018. During the hearing, the undersigned watched a
video of an alleged assault committed by Duncan and White on
January 13, 2017, and received documentary evidence,
including a photograph. The undersigned also heard testimony
from two law enforcement officers regarding the assault,
including Correctional Officer Durrell Cottongin
(“Officer Cottongin”). Officer Cottongin escorted
Duncan away from the scene of the assault. Officer Cottongin
testified that Duncan bragged about the assault during
escort. Duncan sought to suppress that statement. Because
Duncan was not subjected to a “custodial
interrogation” before making the statement, the
undersigned recommended that Duncan's motion to suppress
be denied. (Doc. 103).
trial, the jury acquitted both White and Duncan on the
charges of attempted first degree murder. White was convicted
of attempted second degree murder. Duncan, however, was also
acquitted of all lesser included offenses. Duncan moved for
the undersigned's recusal approximately three weeks after
Law and Analysis
28 U.S.C. § 144, “[w]henever 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 must “state the
facts and the reasons for the belief that bias or prejudice
exists.” Id. To be legally sufficient, an
affidavit must contain facts which are: (1) “material
and stated with particularity”; (2) “such that,
if true they would convince a reasonable person that a bias
exists”; and (3) sufficient to “show the bias is
personal, as opposed to judicial, in nature.”
Parrish v. Board of Commissioners of Alabama State
Bar, 524 F.2d 98, 100 (5th Cir. 1975) (En banc), Cert.
denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).
Further, “while the trial judge may not pass upon the
truthfulness of the affidavit's allegations, he must
determine whether the facts set out in the affidavit are
legally sufficient to require recusal.” Id.
under 28 U.S.C. § 455(a), a “magistrate judge of
the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be
questioned.” Further, “[h]e shall also disqualify
himself . . . [w]here he has a personal bias or prejudice
concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.”
Id. § 455(b)(1). “The determination under
Section 455(a) is objective, ‘so that what matters is
not the reality of bias or prejudice but its
appearance.'” United States v. Malray, CR
17-00103, 2017 WL 3687903, at *3 (W.D. La. Aug. 25, 2017)
(quoting Liljeberg v. Health Servs. Acquisition
Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988)). However,
“[t]his objective standard is established with
reference to ‘the well-informed, thoughtful and
objective observer, rather than the hypersensitive, cynical,
and suspicious person.'” Malray, CR
17-00103, 2017 WL 3687903, at *3 (quoting Andrade v.
Chojnacki, 338 F.3d 448, 454-455 (5th Cir. 2003)).
it should be noted that the undersigned has not issued any
substantive rulings in this case since presiding at the
hearing on Duncan's motion to suppress on March 20, 2018.
To whatever extent Duncan claims the undersigned has already
ruled against him, or otherwise displayed bias against him,
as a result of evidence in Duncan's criminal case, that