The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
THELMA GRAY, )
)
Plaintiff, )
)
vs. ) No. 23-cv-02810-MSN-tmp
)
SHELBY COUNTY BOARD OF )
EDUCATION, )
)
Defendant. )
________________________________________________________________
ORDER DENYING MOTION TO RECUSE
________________________________________________________________
Before the court is plaintiff Thelma Gray’s “Motion for a
New Judge to Be Assigned to Case,” which the court construes as
a motion to recuse.1 (ECF No. 36.) For the reasons below, the
motion is DENIED.
I. BACKGROUND
On December 28, 2023, Gray filed a pro se complaint against
the Shelby County Board of Education (“Board”) alleging disability
discrimination in violation of the Americans with Disabilities Act
of 1990, 42 U.S.C. § 12112, et seq. (“ADA”), and a motion for leave
to proceed in forma pauperis. (ECF Nos. 1 & 2.) Because Gray was
1Pursuant to Administrative Order No. 2013-05, this case has been
referred to the United States magistrate judge for management of
all pretrial matters for determination or report and
recommendation, as appropriate.
requesting to proceed IFP, the court screened the complaint
pursuant to 28 U.S.C. § 1915(e)(2) to determine whether the U.S.
Marshals Service would serve the Board on Gray’s behalf. On January
31, 2024, prior to the court’s ruling on Gray’s motion to proceed
IFP and screening of the complaint, Gray filed a motion to request
a hearing. (ECF No. 6.) Gray stated that she “would like to briefly
explain some things concerning the filing. Also, Plaintiff would
like to ask the Honorable Court questions concerning this case.”
(Id. at PageID 26.) No further explanation was provided by Gray
regarding her request for a hearing.
After the court granted IFP and the Board was served, the
court set the matter for a scheduling conference to be held on
June 6, 2024. (ECF No. 22.) During the scheduling conference, the
parties presented argument on the Board’s pending motion to
dismiss, and the undersigned concluded that limited discovery
regarding whether Gray’s complaint was timely filed was necessary.
(ECF No. 25.) On June 6, 2024, the undersigned entered an order
allowing limited discovery on that issue with a set of deadlines
to conduct discovery and for the parties to supplement their
briefing and introduce evidence. (ECF No. 24.) On June 12, 2024,
the Board submitted a notice to take Gray’s deposition. (ECF No.
26.) On that same day, Gray filed a sworn affidavit detailing when
she accessed the EEOC online portal and first downloaded her right
to sue letter. (ECF No. 27.)
On June 27, 2024, Gray filed a motion that was styled as a
“Motion for Limited Deposition Be Held at the Court.” (ECF No.
29.) In that motion, Gray requested that her deposition take place
at the federal courthouse and be supervised either by the
undersigned magistrate judge or the presiding district judge. (Id.
at PageID 95.) Gray also argued that, because she submitted a sworn
affidavit to support the timely filing of her ADA complaint, a
limited deposition was not warranted. (Id. at PageID 96.) The
undersigned considered the motion and determined that there was no
basis for a judge-supervised deposition or to prohibit the Board
from taking an in-person deposition. (ECF No. 33 at PageID 109-
10.) However, the undersigned found that there was good cause to
extend all of the deadlines. (Id. at PageID 110.)
In the present motion, Gray is requesting that the undersigned
be removed from this case, claiming that the undersigned has shown
bias.2 (ECF No. 36 at PageID 118.) She claims that the reason she
requested a hearing shortly after filing her case was to request
another judge because the undersigned had been assigned to a
previous case that Gray had filed with the court last year.3 (Id.)
2Gray originally filed the motion under seal on July 9, 2024. (ECF
No. 34.) She then filed an identical unsealed version the next day
on July 10. (ECF No. 36.)
3In that case, the parties consented to the magistrate judge’s
jurisdiction, and the undersigned dismissed Gray’s complaint for
failure to state a claim under Federal Rule of Civil Procedure
Gray makes vague, unsubstantiated references to “concerns” about
the undersigned as well as the presiding district court judge based
on phone calls from unmamed individuals. (Id. at PageID 118.) Gray
also argues that the undersigned “did not respond to Plaintiff’s
concerns” regarding her feeling unsafe around counsel for the
Board. (Id. at PageID 119.) Ultimately, Gray argues that the
undersigned is biased “because the Judge did not respond to
Plaintiff’s initial request for a Hearing . . . did not respond to
Plaintiff’s Sworn Affidavit and documented evidence . . . [and]
only responded when Defendant’s Counsel responded to Plaintiff’s
Motion to Hold Limited Deposition at Court.” (Id.)
II. ANALYSIS
Judges are presumed impartial, and the moving party carries
the burden of demonstrating that recusal or disqualification is
warranted. Burley v. Gagacki, 834 F.3d 606, 616 (6th Cir. 2016)
(citing Consol. Rail Corp. v. Yashinsky, 170 F.3d 591, 597 (6th
Cir. 1999)). “Under 28 U.S.C. § 455(a), a judge ‘shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.’” Melchor v. United States, No. 16-1160,
2016 WL 9447162, at *2 (6th Cir. Sept. 23, 2016) (quoting 28 U.S.C.
§ 455(a)). “[R]ecusal is required if a reasonable, objective
person, knowing all of the circumstances, would have questioned
12(b)(6). Gray v. Memphis Shelby Cnty. Educ. Ass’n, No. 23-cv-
02100-TMP, 2023 WL 8654396 (W.D. Tenn. Dec. 14, 2023).
the judge’s impartiality.” Id. (internal quotations and citations
omitted). “The judge need not recuse himself based on the
subjective view of a party, no matter how strongly that view is
held.” Id. (internal quotations, citations, and alterations
omitted). “[J]udicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky v. United
States, 510 U.S. 540, 555 (1994). “[O]nly in the rarest
circumstances” can rulings “evidence the degree of favoritism or
antagonism required” to justify recusal. Id. Similarly,
“[j]udicial remarks” accompanying a ruling “ordinarily do not
support a bias or partiality challenge.” Id.
A judge must also recuse “where he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding.” 28 U.S.C. §
455(b)(1). 28 U.S.C. § 144 states:
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 . . . .
28 U.S.C. § 144. “It is well settled that sections 144 and 455 must
be construed in pari materia.” United States v. Owens, No. 2:17-
cv-2788-JPM-cgc, 2018 WL 7075600, at *1 (W.D. Tenn. Nov. 30, 2018)
(citing United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983)
(internal quotations omitted)). “[D]isqualification under section
455(a) must be predicated as previously under section 144, upon
extrajudicial conduct rather than on judicial conduct.” Id.
(quoting City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th
Cir. 1983)).
Even if there is no statutory basis for recusal, to ensure
public confidence in the judicial process, the court must avoid
even an appearance of impropriety. Huth v. Hubble, No. 5:14-cv-
1215, 2016 WL 6610808, at *5 (N.D. Ohio Feb. 23, 2016)
(citing Union Planters Bank v. L & J Dev. Co., 115 F.3d 378, 383
(6th Cir. 1997)). The Code of Judicial Conduct requires that a
judge disqualify himself or herself where a judge’s impartiality
might reasonably be questioned. Id. (citing Canon 2(A) and 3(C)(1)
of the Code of Judicial Conduct for United States Judges).
“Although mindful of its duty to sit where disqualification is not
required, there are circumstances where it may be appropriate for
a judge to disqualify [himself or herself], even when no actual
partiality, bias, or prejudice exists.” Id.; see also Code of
Conduct for United States Judges, Canon 3(C)(1)(a) (“A judge shall
disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned, including but not
limited to instance in which . . . the judge has a personal bias
or prejudice concerning a party, or personal knowledge of disputed
evidentiary facts concerning the proceeding[.]”).
A reasonable, objective person with knowledge of all the
circumstances would not question the undersigned’s impartiality.
Gray’s allegations exclusively relate to the undersigned’s
judicial decisions rather than any evidence of bias or extra-
judicial conduct that would demonstrate personal bias. Her request
for a hearing in January 2024 was filed before the undersigned
granted her IFP motion and authorized service of the complaint,
and Gray offered no basis for the court to conduct an ex parte
hearing with her. Even if the court had held a hearing, her request
for recusal of the undersigned based on a prior adverse ruling in
Gray v. Memphis Shelby County Education Association, 2023 WL
8654396, would have been denied because “judicial rulings alone
almost never constitute a valid basis for a bias or partiality
motion.” Liteky, 510 U.S. at 555. Moreover, once the Board was
served with the complaint, Gray had the opportunity to address the
court about her concerns at the scheduling conference.
Gray’s bare, vague references to “concerns” about the
presiding district court judge and the undersigned based on phone
calls from unnamed individuals are also not a basis for recusal.
See United States v. Cook, No. 3:18-CR-19-PLP-DCP, 2019 WL
2932660, at *4 (E.D. Tenn. July 8, 2019) (finding that
unsubstantiated assertions of “an unnamed former federal employee
previously t[elling] the Defendant, in an email, that the ‘Judges
in East Tennessee do not like you’” did not provide basis for
recusal).
For the reasons stated above, Gray’s motion for recusal is
DENIED.
IT IS SO ORDERED.
s/Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
October 29, 2024
Date