Poullard v. Hebert

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

JOHN POULLARD (#98999) CIVIL ACTION NO.

VERSUS 22-430-JWD-EWD

LT GABRIEL HEBERT, ET AL.

ORDER

Before the Court is a “Motion to Recuse Magistrate Judge Erin Wilder-Doomes from this

Case,”1 filed by Plaintiff John Poullard (“Poullard”), who is representing himself and who is

confined at the Louisiana State Penitentiary in Angola, Louisiana. The only basis for recusal

provided is that Judge Wilder-Doomes is biased and, thus, wants “to destroy this lawsuit,”

allegedly in retaliation for Chief Judge Dick.2 Poullard also provides additional facts in support

of his Complaint and indicates that the recusal was sought, in part, due to the length of time it is

taking to screen his case, as mandated by 28 U.S.C. § 1915A.3

A motion to recuse is committed to the broad discretion of the targeted judge4 to determine

whether disqualification is appropriate.5 A judge is presumed to be qualified to preside over a

case,6 so a movant seeking disqualification bears the burden of proving that a judge is not qualified

by clear and convincing evidence.7

1 R. Doc. 13.

2 R. Doc. 13, p. 1.

3 R. Doc. 13, p. 4.

4 United States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999).

5 See, e.g., United States v. Mizell, 88 F.3d 288, 299 (5th Cir. 1996), citing Matter of Hipp, Inc., 5 F.3d 109, 116 (5th

Cir.1993).

6 In re Wilborn, 401 B.R. 848, 860 (Bankr. S.D. Tex. 2009), citing In re Betts, 143 B.R. 1016, 1022 (Bankr.

N.D.Ill.1992) (citing Idaho v. Freeman, 478 F.Supp. 33 (D. Idaho 1979)).

7 See Kinnear–Weed Corp. v. Humble Oil & Refining Co., 441 F.2d 631, 634 (5th Cir.1971), superseded by statute,

28 U.S.C. § 455 (1974), as stated in Aronson v. Brown, 14 F.3d 1578, 1582-83 (Fed. Cir. 1994) (noting that § 455 was

amended in 1974 to, among other things, “omit[] the phrase ‘in his opinion’, in order to eliminate the subjective

standard.”).

Two statutes govern recusal motions: 28 U.S.C. § 144 and 28 U.S.C. § 455.8 § 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.

Some courts have held that a pro se litigant may not obtain disqualification of a judge under §

144 because a pro se litigant cannot meet the plain language of the statute requiring “a certificate

of counsel of record stating that it [the affidavit in support of recusal] is made in good faith.”9

Even if Poullard, who is representing himself, could proceed under § 144, he has not met the

procedural requirements of that provision as he has not submitted an affidavit stating the facts and

reasons for the belief that bias or prejudice exists (nor is the Motion made under penalty of

perjury).10 Regardless, the allegations in his Motion are not sufficient to establish personal bias

or prejudice, as more fully explained below in relation to § 455.

§ 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

8 K & F Holdings, Ltd. v. Rouse’s Enterprises, L.L.C., Civ. Action No. 16-293, 2017 WL 2778345, at *1 (M.D. La.

June 27, 2017).

9 See, e.g., Gibson v. Gusman, No. 14-2273, 2014 WL 6469507, at *3 (E.D. La. Nov. 17, 2014), citing Robinson v.

Gregory, 929 F.Supp. 334, 337-38 (S.D. Ind. 1996).

10 “A legally sufficient affidavit must: (1) state material facts with particularity; (2) state facts that, if true, would

convince a reasonable person that a bias exists; and (3) state facts that show the bias is personal, as opposed to judicial,

in nature.” Patterson v. Mobil Oil Corp., 335 F.3d 476, 483 (5th Cir. 2003), citing Henderson v. Dep’t of Pub. Safety

& Corr., 901 F.2d 1288, 1296 (5th Cir.1990).

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 this matter.

In determining whether recusal is appropriate under this statute, the Fifth Circuit has stated

that the recusal standard is an objective one. A party seeking recusal must demonstrate that a

reasonable and objective person, knowing all the facts and circumstances of the case, would harbor

doubts concerning the judge’s impartiality.11 This showing must be based on specific facts so as

to avoid giving a party a “random veto over the assignment of judges.”12 Also, a § 455 claim must

not be so broadly construed that “recusal is mandated upon the merest unsubstantiated suggestion

of personal bias or prejudice.”13

Poullard has failed to provide any specific facts that would lead a reasonable and objective

person to question the undersigned’s impartiality or to demonstrate any personal bias. Poullard

has not provided any basis for his allegation that the undersigned is biased or any reason why the

undersigned would retaliate on behalf of Chief Judge Dick. These assertions are wholly

conclusory. To the extent Poullard’s Motion is based on the fact that screening of his § 1983 action

has not been completed within the time frame he feels is appropriate, that is also not a basis for

recusal. While Poullard is understandably anxious for his case to proceed, the fact that screening

has not been accomplished yet is certainly not sufficient evidence of bias or impartiality. Screening

of this action is mandated under 28 U.S.C. § 1915A. Poullard’s case is in line to be screened in

the order in which it became ripe for screening. The Court notes that though suit was filed in June

11 Patterson, 335 F.3d at 484; U.S. v. Spears, No. 09-19, 2012 WL 112985, at *2 (M.D. La. Jan. 12, 2012).

12 Capizzo v. State, No. 99-138, 1999 WL 539439, at * 1 (E.D. La. July 22, 1999).

13 Spears, 2012 WL 112985 at * 2.

2022, Poullard only submitted the required filing fee on November 9, 2022.14 He then quickly

began filing motions and notices seeking various forms of relief. In fact, in the last four months,

Poullard has filed an amended complaint, a supplement to original statement of claims, three

emergency judicial notices and an objection to a magistrate judge’s ruling, as well as a motion for

reconsideration and this Motion.15 With this Order, all relief requested has been addressed except

for Poullard’s request for reconsideration. Reviewing each of these filings has taken the Court’s

time and attention away from screening his Complaint.

After carefully reviewing the matter, Poullard has failed to provide sufficient factual

support for his allegation of any personal bias or prejudice on the part of the undersigned.

Accordingly, IT IS ORDERED that the Motion to Recuse Magistrate Judge Erin Wilder-Doomes

from This Case,16 filed by Plaintiff John Poullard, is DENIED. The documentation submitted

with the Motion in support of Poullard’s claims in this case will be considered during the screening

required under 28 U.S.C. § 1915A.

Signed in Baton Rouge, Louisiana, on February 23, 2023.

S

ERIN WILDER-DOOMES

UNITED STATES MAGISTRATE JUDGE

14 Cases are not screened until the filing fee is paid or the plaintiff is granted permission to proceed without prepaying

the filing fee.

15 R. Docs. 2, 3, 4, 5, 6, 8, 10, 12 & 13.

16 R. Doc. 13.