United States District Court, D. Maine
MEMORANDUM OF DECISION
C. Nivison U.S. Magistrate Judge.
action, Plaintiff challenges the constitutionality of the
bail commissioner fee that he was required to pay following
his arrest. Plaintiff maintains the fee should have been
returned to him when the charges for which he was arrested
were subsequently dismissed. The fee was collected in
accordance with section 1023 of the Maine Bail Code (15
M.R.S. § 1001, et seq.). Plaintiff sought to join in the
case numerous defendants, including “Every Judge,
District Attorney, Police Officer & Bail Commissioner in
Maine.” (ECF No. 1.)
review of Plaintiff’s complaint pursuant to 28 U.S.C.
§ 1915(e)(2), I recommended the Court dismiss
Plaintiff’s complaint. (ECF No. 5.) Plaintiff
subsequently moved to amend his complaint, and for my
recusal. (ECF No. 6.) Plaintiff contends my recusal is
warranted because I previously served as a Maine state judge
and thus, in Plaintiff’s view, participated in the
alleged unlawful collection or enforcement of the bail
commissioner’s fee. Plaintiff also sought to join me as
a defendant in this action. As explained below,
Plaintiff’s motion for recusal is denied.
28 U.S.C. §§ 144 and 145, which govern recusal on
motion by a party, “there are two possible grounds for
a judge’s disqualification: (1) the judge’s
impartiality may reasonably be questioned; or (2) the judge
may have a personal bias or prejudice concerning a
party.” United States v. Kelly, 712 F.2d 884,
889 (1st Cir. 1983) (citations omitted). “To require
disqualification, the alleged bias or prejudice must be both
‘(1) personal, i.e., directed against a party, and (2)
extrajudicial.’” Id. (quoting United
States v. Carignan, 600 F.2d 762, 763 (9th Cir. 1979)).
“The proper test … is whether the charge of lack
of impartiality is grounded on facts that would create a
reasonable doubt concerning the judge’s impartiality,
not in the mind of the judge himself or even necessarily in
the mind of the litigant filing the motion …, but
rather in the mind of the reasonable man.” United
States v. Cowden, 554 F.2d 257, 265 (1st Cir. 1976).
Similarly, by law a judge or magistrate judge “shall
disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C.
Plaintiff does not cite any facts which would support a
finding of personal bias against him. Instead, he evidently
argues that my prior service as a state court judge precludes
an objective assessment of his challenge to the bail
commissioner fee. The mere fact that I presided over cases
involving individuals who posted bail and paid the bail
commissioner’s fee does not warrant recusal. Indeed,
not infrequently, judges in the federal and state courts
entertain constitutional challenges to statutes that might
have been unchallenged in prior matters over which they
attempt to include me as a defendant in this action also does
not require recusal. The First Circuit has recognized that
recusal is not required when a party threatens or commences a
In order to guard against “judge-shopping, ”
“courts have refused to disqualify themselves under
Section 455(b)(5)(i) unless there is a legitimate basis for
suing the judge.” Andersen v.
Roszkowski, 681 F.Supp. 1284, 1289 (N.D. Ill. 1988),
aff’d, 894 F.2d 1338 (7th Cir. 1990) (table);
see also, e.g., United States v. Pryor, 960 F.2d 1,
3 (1st Cir. 1992) (suit against judge separate from case at
bar; “It cannot be that an automatic recusal can be
obtained by the simple act of suing the judge.”);
United States v. Studley, 783 F.2d934, 940
(9th Cir. 1986) (“A judge is not disqualified by a
litigant’s suit or threatened suit against him”);
United States v. Grismore, 564 F.2d 929, 933 (10th
Cir. 1977) (same), cert. denied, 435 U.S. 954
Tamburro v. City of East Providence, Nos. 92-1321,
92-1322, 92-1323, 92-1324, 1992 WL 380019, *1, 1992 U.S. App.
LEXIS 32825, *3-*4 (1st Cir. Dec. 18, 1992) (unpublished).
evaluating a motion for recusal, I am mindful that a judge
“has as strong a duty to sit when there is no
legitimate reason to recuse as he does to recuse when the law
and facts require.” Nichols v. Alley, 71 F.3d
347, 351 (10th Cir. 1995) (per curiam). Upon review of
Plaintiff’s filings, I perceive no legitimate basis for
Plaintiff’s attempt to join me as a party, nor can I
discern any other basis that requires recusal.
on the foregoing analysis, Plaintiff’s motion for
recusal is denied.
objections to this Order shall be filed in accordance ...