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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

CHARLES L. STRINGER,

Plaintiff,

vs. Case No.: 5:11cv1/RS/EMT

JOHN DOE, et al.,

Defendants.

___________________________________/

O R D E R

Plaintiff initiated this action by filing a civil rights complaint under 42 U.S.C. § 1983 (Doc.

1). His second amended complaint (Doc. 20) is presently under review by the undersigned. Also

pending is Plaintiff’s “Motion of Recusal” requesting recusal of the undersigned from this case

(Doc. 21). 

Plaintiff seeks recusal under 28 U.S.C. §§ 144, 455 (see Doc. 21, attached “Affidavit of

Recusal”). As grounds for Plaintiff’s motion to recuse, he alleges this case is pending in the Panama

City Division of this district, but the undersigned was appointed to the Pensacola Division (id.). He

additionally alleges the undersigned harassed him by requiring him to file an amended complaint

on the court-approved form (id.).1 Plaintiff also asserts the undersigned is biased because he inferred

from the language of previously issued orders that the undersigned pre-determined the credibility

of the parties (that Defendants were more credible than Plaintiff) and the outcome of this case (id.). 

In support of his motion, Plaintiff submitted an affidavit stating, “The Judge has harassed the

plaintiff since her first Order, by stating that plaintiff has to put his complaint in layman term [sic]

1

 Plaintiff alleges the undersigned erroneously instructed him to file his complaint on a form intended for 

prisoners. Plaintiff is mistaken. The undersigned explicitly instructed the clerk of court to send Plaintiff the form for

use by non-prisoners (see Docs. 4, 7).

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if he want [sic] her to issue process and have the defendants served with a summons and complaint!”

(Doc. 21, attached “Affidavit of Recusal”).

In the Eleventh Circuit, Sections 144 and 455 must be construed in pari materia. See Parrish

v. Bd. of Com’rs of Ala. State Bar, 524 F.2d 98, 102–03 (5th Cir. 1975).2 Section 144 provides:

 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. 

Section 455 provides, 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; . . .

28 U.S.C. § 455(a, b(1)). Under § 455(a), the standard is objectively based on whether a reasonable

individual could conclude based on all the facts that the judge’s impartiality could be questioned,

that is, whether the facts establish that the appearance of partiality exists. See id. § 455(a); Jaffree

v. Wallace, 837 F.2d 1461, 1465 (11th Cir. 1988). Whereas, § 455(b), like § 144, requires a

showing of actual partiality. See Hoffman v. Caterpillar, Inc., 368 F.3d 709, 718 (7th Cir. 2004)

(unlike motion under Section 455(a), which simply requires reasonable appearance of bias, motion

under Section 144 requires showing of actual bias, which only personal animus or malice on part

2

 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as

binding precedent all former Fifth Circuit decisions rendered before October 1, 1981.

Case No: 5:11cv1/RS/EMT

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of judge can establish). In either case, the moving party must allege facts supporting his contention;

thus, he must allege facts from which a reasonable person could conclude that the judge’s

impartiality could be questioned, or facts that establish that a particular ground for disqualification

actually exists. Additionally, bias sufficient to disqualify a judge must be personal rather than

judicial unless the judicial conduct “reveal[s] an antipathy . . . intense enough to make fair judgment

impossible.” Onishea v. Hopper, 126 F.3d 1323, 1340, (11th Cir. 1997), vacated on other grounds,

133 F.3d 1377 (11th Cir. 1998); see also First Alabama Bank of Montgomery v. Parsons Steele, 825

F.2d 1475 (11th Cir. 1987); United States v. Meester, 762 F.2d 867, 884–85 (11th Cir. 1985). It is

no basis for disqualification that the judge simply ruled adversely to the movant’s cause. See United

States v. Chandler, 996 F.2d 1073, 1104 (11th Cir. 1993); McWhorter v. City of Birmingham, 906

F.2d 674, 678-79 (11th Cir. 1990); Jaffe v. Grant, 793 F.2d 1182, 1188–89 (11th Cir. 1986). 

In the instant case, the facts contained in Plaintiff’s motion and affidavit provide no basis for

the belief that bias or prejudice exists. The undersigned’s requiring Plaintiff to comply with Local

Rule 5.1(J) by filing his pro se § 1983 complaint on the court-approved form does not suggest bias

or prejudice. Further, the undersigned’s fulfilling her statutory obligation to screen the complaint

to determine whether this action is frivolous or fails to state a claim upon which relief may be

granted does not suggest bias or prejudice. See 28 U.S.C. § 1915(e)(2). As Plaintiff offers no basis

for his claim of bias and prejudice other than the mere fact that the undersigned is performing her

statutory duty and enforcing compliance with the Local Rules, he has failed to show that actual

partiality exists or that any reasonable individual could conclude, based on these facts, that the

partiality of the undersigned could be questioned. Accordingly, recusal or disqualification is not

appropriate, and Plaintiff’s motion will be denied.

Accordingly, it is ORDERED:

Plaintiff’s Motion of Recusal (Doc. 21) is DENIED.

DONE AND ORDERED this 14th day of June 2011.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

Case No: 5:11cv1/RS/EMT

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