DERK v. WETZEL

W.D. Pennsylvania

DERK v. WETZEL

DecidedJanuary 4, 2023

Docket2:21-cv-00657

StatusUnknown

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Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PITTSBURGH STEVEN C. DERK, ) ) Plaintiff, ) 2:21-CV-00657-CRE ) vs. ) ) SUPER. MICHAEL J. ZAKEN, SCI- ) ) GREENE; DEP. SUPER. STEPHEN ) BUZAS, SCI-GREENE; CO.1 D.N. HYDE, ) SCI GREENE; SGT./LT. LARRY BOWLIN, ) SCI GREENE; U.M. STEVEN ) LONGSTRETH, SCI GREENE; CPT. ) HITMYER, CPT. MORRIS, SGT. ) MICHELUCCI, CO.1 HONSAKER, ) ) (HEARING EX. ESCORT) - SCI GRN; ) CO.1 GORDON, (HEARING EX. ) ESCORT) - SCI GRN; B. RUDNIEZSKI, PA ) D.O.C. HEARING EX - SCI GRN; U.M. ) MALANOSKI, ZACHARY J. MOSLAK, ) PA D.O.C. CHIEF HEARING EX.; AND ) MAJOR MARTIN SWITZER, ) ) Defendants, )

MEMORANDUM OPINION AND ORDER

Presently before the Court is Plaintiff’s motion for recusal (ECF No. 95) in which Plaintiff seeks disqualification of the undersigned because her Memorandum Opinion dismissing Plaintiff’s action was a “clear attempt” to “protect the ‘image’ of the Pennsylvania Department of Corrections” and because the main Defendant in the case is a woman and the undersigned is also a woman. (ECF No. 95 at 1-4). Under 28 U.S.C. § 455, a judge is required to recuse herself “in any proceeding in which [her] impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), or “[w]here [she] has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1). The test for recusal under § 455(a) is an objective one and requires recusal where a “reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned.” In re Kensington Int'l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). The bias required before recusal is warranted under either subsection (a) or (b)(1), “must stem from a source outside of the official proceedings.” Liteky v. United States, 510 U.S. 540, 554 (1994). See Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (beliefs or opinions which merit recusal must

involve an extrajudicial factor). The basis for Plaintiff’s allegations stem from his disagreement with the Court’s ruling on the motion to dismiss his complaint and/or rulings on various administrative matters. The Court of Appeals for the Third Circuit has made it clear that “a party's displeasure with legal rulings does not form an adequate basis for recusal.” Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000) (citing In re TMI Litig., 193 F.3d 613, 728 (3d Cir. 1999) and Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990). See Waris v. Heartland Home Healthcare Services, Inc., 365 F. App’x 402, 406–07 (3d Cir. 2010). Thus, “the court must consider whether attacks on a judge's impartiality are simply subterfuge to circumvent anticipated

adverse rulings.” Conklin v. Warrington Twp., 476 F.Supp.2d 458, 462–464 (M.D. Pa. 2007) (citing In re Antar, 71 F.3d 97, 101 (3d Cir. 1995), overruled on other grounds by Smith v. Berg, 247 F.3d 532, 534 (3d Cir. 2001). Instantly, Plaintiff’s allegations have no merit to support recusal. Accordingly, the following Order is entered: AND NOW, this 4th day of January, 2023, it is HEREBY ORDERED that Plaintiff’s motion for recusal (ECF No. 95) is DENIED.

BY THE COURT:

s/Cynthia Reed Eddy United States Magistrate Judge cc: Steven C. Derk CE-3076 SCI FOREST P.O. Box 945 286 Woodland Drive Marienville, PA 16239

All counsel of record via CM/ECF electronic filing

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA PITTSBURGH STEVEN C. DERK, ) ) Plaintiff, ) 2:21-CV-00657-CRE ) vs. ) ) SUPER. MICHAEL J. ZAKEN, SCI- ) ) GREENE; DEP. SUPER. STEPHEN ) BUZAS, SCI-GREENE; CO.1 D.N. HYDE, ) SCI GREENE; SGT./LT. LARRY BOWLIN, ) SCI GREENE; U.M. STEVEN ) LONGSTRETH, SCI GREENE; CPT. ) HITMYER, CPT. MORRIS, SGT. ) MICHELUCCI, CO.1 HONSAKER, ) ) (HEARING EX. ESCORT) - SCI GRN; ) CO.1 GORDON, (HEARING EX. ) ESCORT) - SCI GRN; B. RUDNIEZSKI, PA ) D.O.C. HEARING EX - SCI GRN; U.M. ) MALANOSKI, ZACHARY J. MOSLAK, ) PA D.O.C. CHIEF HEARING EX.; AND ) MAJOR MARTIN SWITZER, ) ) Defendants, )

MEMORANDUM OPINION AND ORDER

Presently before the Court is Plaintiff’s motion for recusal (ECF No. 95) in which Plaintiff seeks disqualification of the undersigned because her Memorandum Opinion dismissing Plaintiff’s action was a “clear attempt” to “protect the ‘image’ of the Pennsylvania Department of Corrections” and because the main Defendant in the case is a woman and the undersigned is also a woman. (ECF No. 95 at 1-4). Under 28 U.S.C. § 455, a judge is required to recuse herself “in any proceeding in which [her] impartiality might reasonably be questioned,” 28 U.S.C. § 455(a), or “[w]here [she] has a personal bias or prejudice concerning a party.” 28 U.S.C. § 455(b)(1). The test for recusal under § 455(a) is an objective one and requires recusal where a “reasonable person, with knowledge of all the facts, would conclude that the judge's impartiality might reasonably be questioned.” In re Kensington Int'l Ltd., 368 F.3d 289, 301 (3d Cir. 2004). The bias required before recusal is warranted under either subsection (a) or (b)(1), “must stem from a source outside of the official proceedings.” Liteky v. United States, 510 U.S. 540, 554 (1994). See Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (beliefs or opinions which merit recusal must

involve an extrajudicial factor). The basis for Plaintiff’s allegations stem from his disagreement with the Court’s ruling on the motion to dismiss his complaint and/or rulings on various administrative matters. The Court of Appeals for the Third Circuit has made it clear that “a party's displeasure with legal rulings does not form an adequate basis for recusal.” Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000) (citing In re TMI Litig., 193 F.3d 613, 728 (3d Cir. 1999) and Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990). See Waris v. Heartland Home Healthcare Services, Inc., 365 F. App’x 402, 406–07 (3d Cir. 2010). Thus, “the court must consider whether attacks on a judge's impartiality are simply subterfuge to circumvent anticipated

adverse rulings.” Conklin v. Warrington Twp., 476 F.Supp.2d 458, 462–464 (M.D. Pa. 2007) (citing In re Antar, 71 F.3d 97, 101 (3d Cir. 1995), overruled on other grounds by Smith v. Berg, 247 F.3d 532, 534 (3d Cir. 2001). Instantly, Plaintiff’s allegations have no merit to support recusal. Accordingly, the following Order is entered: AND NOW, this 4th day of January, 2023, it is HEREBY ORDERED that Plaintiff’s motion for recusal (ECF No. 95) is DENIED.

BY THE COURT:

s/Cynthia Reed Eddy United States Magistrate Judge cc: Steven C. Derk CE-3076 SCI FOREST P.O. Box 945 286 Woodland Drive Marienville, PA 16239

All counsel of record via CM/ECF electronic filing