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Duncan v. Nunez

United States District Court, W.D. Louisiana, Alexandria Division

July 19, 2018

MARCO DAMON DUNCAN, Plaintiff
v.
JOSE NUNEZ, ET AL., Defendants

          JUDGE DRELL

          MEMORANDUM ORDER

          JOSEPH H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE

         Before 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.

         There 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.

         I. Background

         In this 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).

         In 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.

         Meanwhile, 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 (Doc. 103).

         The 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).

         At 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 his acquittal.

         II. Law and Analysis

         Under 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, “w[]hile 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.

         Likewise, 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)).

         First, 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 ...


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