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McDowell v. Our Lady of Lake

United States District Court, M.D. Louisiana

September 18, 2019




         Before the Court is a document entitled “EMERGENCY URGENT MOTION REQUEST”[1] which, the Court construes as a Motion for Recusal filed by pro se Plaintiff Gerald Mcdowell (“Plaintiff”). Although the document requests a default judgment, [2] the Motion cites 28 U.S.C. § 455 and appears to also seek recusal of the undersigned. To the extent the Motion seeks recusal, it will be denied.

         I. Factual Background

         On August 28, 2019, Plaintiff filed his Complaint against Our Lady of the Lake, Susan Dixon, Hanover Insurance Company, and Lane Regional Medical Center on August 28, 2019.[3]Per the Complaint, Plaintiff alleges that certain defendants “did perform retaliatory, negligent, and racketeering against” Plaintiff.[4] Plaintiff seeks “2, 000, 000 for medical racketeering, ” “500, 000 for mental anguish due to him being bipolar and then getting reevaluated and then diagnosed with bipolar…, ” and requests “all the agencies listed come to court at the same time to prove the medical racketeering and the role they played in Geralds [sic] suffering.”[5] An “Emergency Complaint” is attached to the Complaint in which Plaintiff seems to question “the negotiating process” relative to an insurance claim.[6]

         The same day his Complaint was filed, Plaintiff also filed a motion to proceed in forma pauperis, which the Court granted.[7] A hearing was set pursuant to Spears v. McCotter[8] (“Spears hearing”), to determine if any or all of Plaintiff’s claims were frivolous and subject to dismissal.[9]At the September 11, 2019 Spears hearing, Plaintiff presented information regarding the basis for his claim. Specifically, Plaintiff explained that he filed a claim against an urgent care clinic located at 1401 North Foster Drive (which appears to be affiliated with defendant, Our Lady of the Lake) because a stitch was left in his wrist. Plaintiff stated that he believes Defendants retaliated against him for making a claim related to his wrist by murdering his grandfather, Willie Tate. Plaintiff also complained that the insurance policy number included the “sign of the beast” (i.e., the policy number included “666”) but that Plaintiff only knew of the claim number.

         At the end of the Spears hearing, Plaintiff was advised that a report would be issued with the undersigned’s recommendation to the district judge that Plaintiff’s claims should be dismissed, [10] but that Plaintiff would have fourteen days to submit objections to the report. Plaintiff was also advised that the district judge would make the final decision and issue a ruling as to whether Plaintiff’s claims would be allowed to proceed.

         II. Law and Analysis

         Two statutes govern recusal motions: 28 U.S.C. § 144 and 28 U.S.C. § 455.[11] § 144 states as follows:

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.

         Plaintiff has not met the procedural requirements of § 144 as he has not submitted an affidavit stating the facts and reasons for the belief that bias or prejudice exists.[12] Thus, recusal under § 144 is not applicable.

         § 455 reads, in pertinent part, as follows:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. (b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding. . . .”

         While § 455 does not contain the same procedural requirements as § 144, recusal under § 455 is unwarranted.

         In determining whether recusal is appropriate under this statute, the Fifth Circuit has stated that the recusal standard is an objective one. Plaintiff must demonstrate that a reasonable and objective person, knowing all the facts and circumstances of the case, would harbor doubts concerning the undersigned’s impartiality.[13] This showing must be based on specific facts so as to avoid giving a party a “random veto over the assignment of judges.”[14] Also, a ยง 455 claim must not be ...

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