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Proctor v. Board of Medicine

United States District Court, W.D. Michigan, Southern Division

December 5, 2016

VERNON EUGENE PROCTOR, M.D., Plaintiff,
v.
BOARD OF MEDICINE et al, Defendants.

          OPINION

          HON. JANET T. NEFF United States District Judge.

         Pending before the Court is Plaintiffs Motion to Disqualify District Judge Pursuant to 28 U.S.C. § 144 and § 455 (Dkt 34). Defendants have filed a Response in opposition (Dkt 37). Having fully considered Plaintiffs arguments, the Court denies the motion.

         I. Background

         Plaintiff Vernon Eugene Proctor, M.D., moves to disqualify the undersigned from presiding over this case. Plaintiffs motion is based on purported comments and conduct of the undersigned in proceedings in this case; in Plaintiffs related case, Proctor v. Waldmiller, l:16-cv-413-JTN, which has since been dismissed by the parties' stipulation; and in a third unrelated case to which Plaintiff was not a party, but which involved plaintiffs counsel, J. Nicholas Bostic, Hill v. Whitford, 1:12-cv-291 - JTN, a case which was administratively closed in May 2015. Plaintiff argues that the cited comments and conduct reflect a predetermination of the validity of the cases, convey the appearance of impropriety, and demonstrate a bias toward the plaintiffs in these cases.

         II. Analysis

         28 U.S.C. § 144 provides for district judge recusal for bias:

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.

28 U.S.C. § 144; see Liteky v. United States, 510 U.S. 540, 544 (1994).

28 U.S.C. § 455 likewise provides for recusal, stating in relevant part:

(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;

See Bell v. Johnson, 404 F.3d 997, 1004-05 (6th Cir. 2005) (addressing the standard under § 455(a)-(b)). Plaintiff does not distinguish any specific arguments concerning 28 U.S.C. § 144. In any event, as the Supreme Court explained in Liteky, 510 U.S. at 548, subsection (b)(1) of 28 U.S.C. § 455 entirely duplicates the grounds of recusal set forth in § 144 ("bias or prejudice), but (1) makes them applicable to all justices, judges, and magistrates (not just district judges), and (2) places the obligation on the judge to identify grounds for recusal, rather than requiring recusal only in response ...


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