noting that § 455 was amended in 1974 to, among other things, “omit[] the phrase ‘in his opinion’, in order to eliminate the subjective standard.”
How later courts described this case
- noting that § 455 was amended in 1974 to, among other things, “omit[] the phrase ‘in his opinion’, in order to eliminate the subjective standard.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
STEVEN ROY KILLINGSWORTH (#728006) CIVIL ACTION NO.
VERSUS 21-337-BAJ-EWD
KARLA BRINGEDAHL, ET AL.
ORDER
Before the Court is a “Motion for Recusal of Honorable Judge Brian Jackson and
Magistrate Judge Erin Wilder-Doomes pursuant to 28 U.S.C.A. 455 and Formal Complaint
pursuant to 28 U.S.C.A. 354,”1 filed by Plaintiff Steven Roy Killingsworth (“Killingsworth”), who
is representing himself and who is confined at the Dixon Correctional Institution in Jackson,
Louisiana. Killingsworth alleges that Judge Jackson and Judge Wilder-Doomes must be part of a
conspiracy to infringe upon Killingsworth’s substantial rights and as support notes the history and
progression of this case.2
A motion to recuse is committed to the broad discretion of the targeted judge3 to determine
whether disqualification is appropriate.4 A judge is presumed to be qualified to preside over a
case,5 so a movant seeking disqualification bears the burden of proving that a judge is not qualified
by clear and convincing evidence.6
1 R. Doc. 31.
2 See R. Doc. 31, pp. 1-4.
3 United States v. Bremers, 195 F.3d 221, 226 (5th Cir. 1999).
4 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).
5 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)).
6 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 v. Humble Oil & Refining Co., 441 F.2d 631, 634 (5th Cir.1971), superseded by statute,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. § 455.7 § 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.”8
Even if Killingsworth, who is representing himself, could proceed under § 144, the allegations in
his Motion are not sufficient to establish personal bias or prejudice on the part of either of the
judges assigned to this case, as more fully explained below in relation to § 455, the provision
specifically cited by Killingsworth.
§ 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. . . .”
7 K & F Holdings, Ltd. v. Rouse’s Enterprises, L.L.C., No. 16-293, 2017 WL 2778345, at *1 (M.D. La. June 27, 2017).
8 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).
While § 455 does not contain the same procedural requirements as § 144, recusal under § 455 is
not warranted here.
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.9 This showing must be based on specific facts so as to
avoid giving a party a “random veto over the assignment of judges.”10 Also, a § 455 claim must
not be so broadly construed that “recusal is mandated upon the merest unsubstantiated suggestion
of personal bias or prejudice.”11
Killingsworth has failed to provide any specific facts that would lead a reasonable and
objective person to question the impartiality or to demonstrate any personal bias as to either judge
assigned to his case under either § 144 or § 455. The facts relied on by Killingsworth to show a
conspiracy and bias are merely statements regarding how the case has progressed, which how civil
rights complaints by prisoners normally progress through this Court. For example, Killingsworth
complains that the order granting him pauper status directed that service would not be made and
that summons should be withheld until further order of the Court.12 It is standard practice of this
Court to withhold service for cases that are subject to the screening provisions of 28 U.S.C. §§
1915(e) and/or 1915A until the screening process is completed. Similarly, Killingsworth questions
why he was required to complete a USM-285 form for service. Again, this is a standard order for
all individuals who qualify for service by the United States Marshals Service under Federal Rule
9 Patterson, 335 F.3d at 484; U.S. v. Spears, No. 09-19, 2012 WL 112985, at *2 (M.D. La. Jan. 12, 2012).
10 Capizzo v. State, Civ. Action No. 99-138, 1999 WL 539439, at * 1 (E.D. La. July 22, 1999).
11 Spears, 2012 WL 112985 at * 2.
12 R. Doc. 31, p. 1.
of Civil Procedure 4(c)(3).13 Similarly, Killingsworth complains about the length of time a motion
to reinstate his suit after dismissal was pending. The facts provided by Killingsworth are merely
facts regarding how a case of this type typically proceeds through the Court system and/or
disagreements regarding rulings and orders issued by this Court, which is not a basis for recusal.14
Killingsworth also references 28 U.S.C. § 354, presumably to make a judicial misconduct
complaint. That provision provides, in pertinent part:
(a) Actions Upon Receipt of Report.—
(1) Actions.—The judicial council of a circuit, upon receipt
of a report filed under section 353(c)—
(A) may conduct any additional investigation which
it considers to be necessary;
(B) may dismiss the complaint; and
(C) if the complaint is not dismissed, shall take such
action as is appropriate to assure the effective and
expeditious administration of the business of the
courts within the circuit.
Killingsworth misunderstands the process for filing a judicial misconduct complaint. To the extent
he wishes to raise allegations of judicial misconduct, he must do so according to The Judicial
Conduct and Disability Act of 1980, 28 U.S.C. §§ 351-364 (“the Act”) and the Rules for Judicial-
Conduct and Judicial-Disability Proceedings.15 While the Act authorizes complaints against
United States Circuit, District, Bankruptcy, and Magistrate Judges who have “engaged in conduct
13 R. Doc. 31, p. 2. The instructions for the Form 285 state, in relevant part: “Submit one complete set of this form
(USM-285) and one copy of each writ for each individual, company, corporation, etc., to be served or property to be
seized or condemned.”
14 See Mandawala v. Northeast Baptist Hospital, Counts 1, 2, and 11, 16 F.4th 1144, 1156-57 (5th Cir. 2021)
(“[A]dverse rulings, without more, do not warrant disqualification for bias. It is obvious why: If we credited [the
plaintiff’s] theory, every judge would have to recuse, because any ruling in a dispute between parties would supply
prima facie evidence of bias against the loser.”). See also Liteky v. U.S., 510 U.S. 540, 541 (1994) (“First, judicial
rulings alone almost never constitute valid basis for a bias or partiality recusal motion…Second, opinions formed by
the judge on the basis of facts introduced or events occurring during current or prior proceedings are not grounds for
a recusal motion unless they display deep-seated favoritism or antagonism as would make fair judgment impossible.”).
15 The provision referenced by Killingsworth only comes into play after an initial complaint is filed with the clerk of
the court of appeals for the circuit (28 U.S.C. § 351(a)), which is reviewed by the chief judge of the circuit. Only if a
special committee is appointed to investigate and files a written report suggesting that action from the judicial council
of the circuit is necessary would the provision cited by Killingsworth be applicable.
prejudicial to the effective and expeditious administration of the business of the courts” or who
are “unable to discharge all the duties of office by reason of mental or physical disability,” this
Court is not the proper forum for such complaints.16 Additionally, Killingsworth is advised that
the Act is not intended to facilitate complaints based on what he perceives to be incorrect judicial
decisions. A complaint under the Act may be dismissed if it is “directly related to the merits of a
decision or procedural ruling.” This Court will take no further action related to any complaint by
Killingsworth against any judge of this Court under The Judicial Conduct and Disability Act of
1980, 28 U.S.C. §§ 351-364.
After carefully reviewing the matter, there is not sufficient factual support for
Killingsworth’s allegation of any personal bias or prejudice on the part of either judge assigned to
this case to warrant recusal and this Court is not the proper venue for judicial misconduct
complaints. Accordingly,
IT IS ORDERED that to the “Motion for Recusal of Honorable Judge Brian Jackson and
Magistrate Judge Erin Wilder-Doomes pursuant to 28 U.S.C.A. 455 and Formal Complaint
pursuant to 28 U.S.C.A. 354,”17 filed by Plaintiff Steven Roy Killingsworth, is DENIED.
Signed in Baton Rouge, Louisiana, on February 23, 2023.
S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE
16 See, Appendix to Local Civil Rules of the Middle District of Louisiana. Written complaints under the Act may be
filed at the following office:
Clerk
United States Court of Appeal for the Fifth Circuit
600 Camp Street, Room 102
New Orleans, LA 70130
17 R. Doc. 31.