Richard Maximus Strahan v. Sean O’Reilly, et al.

2022 DNH 101P

• Court: District Court, D. New Hampshire
• Decided: August 23, 2022
• Docket: 22-cv-052-LM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Maximus Strahan

v. Civil No. 22-cv-052-LM Opinion No. 2022 DNH 101P Sean O’Reilly, et al.

ORDER

Plaintiff Richard Maximus Strahan, proceeding in forma pauperis and pro se,

filed a civil rights complaint against various individuals. Recently, Strahan filed

what he styles as the “Revised Amended Complaint” in which he adds the

undersigned as a defendant in this case. Doc. no. 65. Strahan takes issue with the

court’s orders directing him to cease telephonic communication with the courthouse

and from abusing or harassing court employees. Strahan also takes issue with

some of the court’s other orders in this case, including its denial of Strahan’s motion

for the court to issue subpoenas and its stay of briefing on several motions to

dismiss during preliminary review.

I previously denied a motion to recuse filed by Strahan premised on his

threats to file a lawsuit against me. Doc. no. 66 (addressing doc. no. 62). In light of

his filing of the Revised Amended Complaint, Strahan again moves for my recusal

(doc. no. 67). Having reviewed the Revised Amended Complaint and Strahan’s

renewed motion to recuse, the court reconsiders its earlier ruling on recusal and

finds that recusal is warranted in this case under 28 U.S.C. § 455(b)(5)(i). DISCUSSION

Under § 455(b)(5)(i), a judge must recuse herself if she is “a party to the

proceeding.” The First Circuit has stated in an unpublished opinion that, unless

there is a legitimate basis for the suit and to prevent “judge-shopping,” a judge is

not required to recuse herself under § 455(b)(5)(i) when a litigant brings a lawsuit

against the presiding judge. Tamburro v. City of E. Providence, 981 F.2d 1245

(Table), 1992 WL 380019, at *1 (1st Cir. Dec. 18, 1992). However, unpublished

First Circuit decisions are nonbinding persuasive authority,1 and Canon 3C of the

Code of Judicial Conduct and the plain text of § 455(b)(5)(i) state that a judge

cannot preside over a case in which she is named as a defendant. See Committee on

Codes of Conduct, Advisory Opinion No. 103, Guide to Judiciary Policy, Vol. 2B, Ch.

2 at 187-92 (June 2009) (interpreting Canon 3C and stating that “[a]utomatic

disqualification of a judge cannot be obtained by the simple act of suing the judge,

particularly where the suit is primarily based on the judge’s prior rulings” but “[a]

judge must recuse if he or she is named as a defendant in a proceeding that has

been assigned to the judge”). In line with that view, the Tenth Circuit has held—

also in an unpublished opinion—that it was error (albeit harmless error) for a judge

to continue presiding over a suit when she had been named a defendant in the suit.

Young v. United States, 316 Fed. Appx. 764, 772-73 (10th Cir. 2009) (“Under 28

1 The First Circuit considers unpublished opinions “for their persuasive value

but not as binding precedent.” See First Circuit Rule 32.1.0(a); Narragansett Indian Tribe v. Rhode Island, 449 F.3d 16, 29 n.8 (1st Cir. 2006) (stating that an unpublished opinion “has no precedential force”); Charest v. Fed. Nat’l Mortg. Ass’n, 9 F. Supp. 3d 114, 130 n.28 (D. Mass. 2014) (considering unpublished First Circuit decision “for its persuasive value as opposed to its binding effect”). 2 U.S.C. § 455(b)(5)(i), a judge must recuse herself when she is a party to the

proceeding, and this mandatory provision required Judge Weinshienk to recuse

herself from the second action.”).

Critically, in many suits in which a judge continues to preside even though

she has been named as a defendant, courts explicitly or implicitly apply the “rule of

necessity,” which allows a disqualified judge to hear a case when the case cannot be

heard otherwise. See, e.g., Glick v. Edwards, 803 F.3d 505, 508-09 (9th Cir. 2015)

(declining to require recusal under § 455(b)(5)(i) when plaintiff “indiscriminately

sued every judge in the District of Montana”); Tapia-Ortiz v. Winter, 185 F.3d 8, 10

(2d Cir. 1999) (per curiam) (declining to require recusal of circuit judges under

§ 455(b)(5)(i) when “[a]ppellant sued all of the active and senior judges serving on

this court at the time of his complaint”); Andersen v. Roszkowski, 681 F. Supp.

1284, 1289 (N.D. Ill. 1988) (declining to recuse under § 455(b)(5)(i) when plaintiff

amended complaint to add presiding judge as a defendant in part because “[t]he

Court will not allow plaintiffs to impede the administration of justice by suing every

district court judge in the Northern District of Illinois until their case is transferred

out of the Seventh Circuit”). In other words, a litigant cannot abuse § 455(b)(5)(i) to

obstruct judicial proceedings by reflexively suing every judge who makes rulings

adverse to him. At this point, however, Strahan has not shown that he intends to

add every judge who makes rulings with which he disagrees as a defendant in this

case. Accordingly, the rule of necessity is not presently applicable, and recusal is

the more appropriate action given the mandatory language of § 455(b)(5)(i).

3 CONCLUSION

For these reasons, the court grants Strahan’s motion to recuse (doc. no. 67).

The Clerk of Court shall reassign this case to another judge of this district.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

August 23, 2022

cc: Richard Maximus Strahan, pro se Counsel of Record