UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 05-cr-57-01-SM

Opinion No. 2008 DNH 033

Gordon Reid

O R D E R

Defendant Gordon Reid’s motion for recusal (document no.

629) is denied.

The court finds that the motion, filed on the day scheduled

for sentencing (previously continued), is interposed for purposes

of delay. In addition, the motion is based upon an unsupportable

assertion that the undersigned is either partial or that a

disqualifying appearance of partiality exists, based upon the

resolution of a civil case filed by the defendant, Reid v.

Strafford County Department of Corrections, et al., No. 06-cv182-SM, in which he made various complaints about the conditions

of his confinement. See 28 U.S.C. § 455(a). In that civil case,

summary judgment was entered in favor of the defendants by the

undersigned by order dated January 15, 2008. Reid, the nonmoving party, failed to object or otherwise respond to

defendants’ motions for summary judgment. Accordingly, the

factual statements offered by defendants, as supported by

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affidavits and exhibits, were taken as true. See, e.g., McCrory

v. Spigel, 260 F.3d 27, 31 (1st Cir. 2001). See also Local Rule

7.2(b)(2). Those facts, even viewed in the light most favorable

to Reid, entitled defendants to judgment as a matter of law.

In the order granting summary judgment, the court noted

that:

“While there [in the Strafford County Jail], it appears

Reid quickly distinguished himself as a combative,

disruptive, and violent inmate. See, e.g., Affidavit

of Superintendent Warren Dowaliby (document no. 12-2)

(noting that during his relatively brief detention at

the jail, Reid assaulted a corrections officer by

throwing a chair at him, attacked other inmates at

various times, resisted and/or interfered with a

corrections officer, and, on one occasion, stabbed

another inmate in the face).

Order (document no. 64) at 1-2. (emphasis added). The proffered

facts regarding Reid’s behavior were relevant to his claims,

inter alia, of unconstitutional conditions of confinement,

denials of due process in discipline proceedings, and excessive

force, because they explained why, on occasion, corrections

officers were required to use force against him (e.g., using

pepper spray to stop him from assaulting another inmate, placing

him in full restraints whenever he was moved out of maximum

security/disciplinary segregation, etc.). Reid now says that the

court’s “findings” and its exposure to the information in the

Warden’s affidavits (and presumably other materials) in his civil

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suit, are disqualifying with regard to this judge’s presiding

over his criminal sentencing. See generally, Transcript of

Sentencing Hearing (February 1, 2008).

Recusal of federal judges is governed by 28 U.S.C. § 455(a),

which requires recusal in any proceeding in which the judge’s

impartiality might reasonably be questioned. Not only does

actual partiality require recusal, but its objective appearance

does as well. See United States v. Snyder, 235 F.3d 42 (1st Cir.

2000). Nevertheless, judges are not to recuse themselves lightly

under § 455(a), and that provision should not be used by judges

to avoid sitting on difficult or controversial cases. Id.

Though not an absolute rule, still, it is generally

understood that a judge’s decisions on matters before him or her

ordinarily do not form a basis for recusal in other cases

involving the same party or parties. An “extrajudicial” source

for the asserted bias or appearance of bias is generally

required. See In re United States, 441 F.3d 44, 67 (1st Cir.

2006). Here, the source of the asserted bias or appearance of

bias is not extrajudicial. Rather, it is the affidavits (which

Reid chose not to oppose) filed in Reid’s civil case. Moreover,

Reid’s claim of bias or partiality also rests in part upon his

misquoting (by not fully quoting) the provision of the order

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granting summary judgment in his civil case (i.e., Reid’s motion

leaves out the words “While there, it appears Reid” before

“quickly distinguished himself as a combative, disruptive, and

violent inmate, etc.”).

As one scholarly publication on the subject of recusal has

observed:

In some cases, the judge’s familiarity with aspects of

a case comes from having presided over related cases. 

Here, too, absent unusual circumstances, recusal is

unnecessary. The case of Town of Norfolk v. United

States Army Corps of Engineers, [968 F.2d 1438 (1st

Cir. 1992)] is illustrative. A district judge had

overseen compliance with a city plan to clean up the

Boston Harbor. In a subsequent case about locating a

landfill pursuant to the Clean Water Act, a party moved

for the judge’s recusal and the judge refused. The

First Circuit upheld the refusal, noting that “a judge

is sometimes required to act against the backdrop of

official positions he took in other related cases. A

judge cannot be replaced every time a case presents an

issue with which the judge’s prior official decisions

and positions may have a connection.”

Recusal: Analysis of Case Law Under 28 U.S.C. §§ 455 & 144,

Federal Judicial Center (2002), p. 26 (quoting Town of Norfolk,

968 F.2d at 1462). A decision on a recusal motion requires the

judge to balance several factors and “must reflect not only the

need to secure public confidence through proceedings that appear

impartial, but also the need to prevent parties from too easily

obtaining the disqualification of a judge, thereby potentially

manipulating the system for strategic reasons, perhaps to obtain

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a judge more to their liking.” In re U.S., 441 F.3d at 67

(quoting In re Allied-Signal, Inc., 891 F.2d 967, 970 (1st Cir.

1989) (emphasis in original)).

Reid’s motion to recuse on the day of sentencing seems part

of his general approach of seeking to delay proceedings to the

extent possible, and it is without merit. While, personally, I

would be more than pleased to routinely grant recusal motions and

have matters reassigned, I cannot justify doing so in this case,

given the applicable legal standard, and I recognize that doing

so when a solid basis in law does not exist merely shifts the

burden to equally busy colleagues.

Accordingly, the motion (document no. 629) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

February 6, 2008

cc: Donald A. Feith, Esq.

Robert M. Kinsella, Esq.

Michael J. Iacopino, Esq.

Gordon Reid, pro se

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