United States District Court, D. Maryland
LIPTON HOLLANDER UNITED STATES DISTRICT JUDGE.
February 16, 2018, the self-represented plaintiff, Lester
Moody, filed suit against his former employer, the Baltimore
City Department of Social Services, alleging retaliation in
violation of three statutes: Title VII of the Civil Rights
Act of 1964, codified, as amended, at 42 U.S.C. §§
2000e et seq.; Title IX of the Education Amendments
Act of 1972, codified at 20 U.S.C. §§ 1681 et
seq.; and the Maryland Fair Employment Practices Act,
Md. Code (2014 Repl., 2017 Supp.), § 20-606 of the State
Government Article (“S.G.”). See ECF 1
(“Complaint”). He also moved for leave to proceed
in forma pauperis (“IFP”). ECF 3. The Court
granted the IFP Motion. ECF 5.
March 1, 2018, Mr. Moody also asked the Court to appoint
counsel to assist him in this litigation. ECF 4. The Court
denied that request. ECF 5. The Court explained that Mr.
Moody's reliance on the Sixth Amendment was entirely
misplaced. Id. The right to counsel under the Sixth
Amendment applies to defendants in criminal cases. But, this
is a civil case initiated by Mr. Moody. Moreover, for the
reasons stated in ECF 5, he is not entitled to counsel under
28 U.S.C. § 1915(e).
unhappy with the Court's denial of the request for
appointment of counsel, on April 13, 2018, Mr. Moody filed a
“Motion To Remove The Current Judge From The Case For
Denial of Counsel.” ECF 13. In that motion, Mr. Moody
also renewed his request for the appointment of counsel.
Id. at 1-3. Moreover, on April 13, 2017, Mr. Moody
filed another request, addressed to the “Chief Judge of
the U.S. District Court, ” seeking the appointment of
counsel. See ECF 15. Then, on April 24, 2018, Mr.
Moody filed duplicate copies of both motions. See
ECF 16 (duplicate of the motion addressed to the “Chief
Judge”); ECF 16-1 (duplicate of the motion to recuse).
Court is mindful of its obligation to construe liberally the
filings of a pro se litigant, which are held to less
stringent standards than filings drafted by an attorney.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
see also White v. White, 886 F.2d 721, 722-23 (4th
Cir. 1989). No hearing is necessary to resolve the
motions. See Local Rule 105.6. For the
reasons stated below, I shall deny the motions.
Mr. Moody's recusal request, 28 U.S.C. § 455 is
relevant. Section 455 is titled “Disqualification of
justice, judge, or magistrate judge.” Under § 455,
the judge whose objectivity is being challenged by a motion
to recuse is the one who should first review the matter and
render the disqualification decision.
455(a) focuses on the appearance of impropriety. It states:
“Any justice, judge, or magistrate judge of the United
States shall disqualify [herself] in any proceeding in which
[her] impartiality might reasonably be questioned.” The
test “embodies an objective standard” and asks
“whether an objective, disinterested, lay observer
fully informed of the facts . . . would entertain a
significant doubt about a judge's impartiality.”
Parker v. Connors Steel Co., 855 F.2d 1510, 1524
(11th Cir. 1988). The provision is intended to promote
confidence in the judiciary. Liljeberg v. Health Serv.
Acquisition Corp., 486 U.S. 847, 865 (1988).
Supreme Court has noted, § 455(a) “deals with the
objective appearance of partiality.”
Liteky v. United States, 510 U.S. 540, 553 n.2
(1994) (emphasis in Liteky). Disqualification is
required “only if it appears that [a judge] harbors an
aversion, hostility or disposition of a kind that a fair
minded person could not set aside when judging the
dispute.” Id. at 558. This objective standard
includes not only actual impartiality, but also the
appearance of impartiality. See United States v.
Carmichael, 726 F.2d 158, 160 (4th Cir. 1984). In other
words, “[t]he inquiry is whether a reasonable person
would have a reasonable basis for questioning the judge's
impartiality, not whether the judge is in fact
impartial.” In re Beard, 811 F.2d 818, 827
(4th Cir. 1987) (internal citation omitted).
a “presiding judge is not . . . required to recuse
[herself] simply because of ‘unsupported, irrational or
highly tenuous speculation.'” Cherry, 330
F.3d at 665 (quoting United States v. DeTemple, 162
F.3d 279, 287 (4th Cir. 1998)). Rather, “[t]he alleged
bias must derive from an extra-judicial source [and] . . .
result in an opinion on the merits on a basis other than that
learned by the judge from [her] participation in the
matter.” In re Beard, 811 F.2d at 827; see
Shaw v. Martin, 733 F.2d 304, 308 (4th Cir. 1984).
Simply put, “[t]he proper test to be applied is whether
another with knowledge of all of the circumstances might
reasonably question the judge's impartiality.”
28 U.S.C. § 455(b) enumerates circumstances in which a
federal judge “shall” disqualify herself, because
partiality is presumed. See Richard K. Neumann, Jr.,
Conflicts Of Interest In Bush v. Gore: Did Some
Justices Vote Illegally?, 16 Geo. J. Legal Ethics
375 at 5 (Spring 2003). For example, § 455(b)(5)(iii)
states that a judge shall recuse herself if she has “an
interest that could be substantially affected by the outcome
of the proceeding.” If such a conflict exists, it
cannot be waived. 28 U.S.C. § 455(e).
28 U.S.C. § 144, recusal can be considered whenever a
party to a proceeding files a sufficient affidavit stating
that the judge has a personal bias or prejudice either
against that party or in favor of another party. And, due
process may sometimes demand recusal even when a judge
“‘ha[s] no actual bias.'” Rippo v.
Baker, ___U.S.___, 137 S.Ct. 905, 907 (2017) (per
curiam) (citation omitted) (alteration in Rippo). In
Rippo, the Court said, id.: “Recusal
is required when, objectively speaking, ‘the
probability of actual bias on the part of the judge . . . is
too high to be constitutionally tolerable.'”
(Citation omitted); see also Williams v.
Pennsylvania, 579 U.S.___, 136 S.Ct. 1899, 1905 (2016).
there is no basis for mandatory recusal, nor is there any
basis on which a reasonable person might question my
impartiality in relation to this litigation. In denying Mr.
Moody's initial request for the appointment of counsel, I
carefully considered his motion and, consistent with my
judicial responsibility, the ruling was founded on the law.
Accordingly, I decline to recuse myself from this litigation.
plaintiff's initial request for counsel (ECF 4), Mr.
Moody avers in his subsequent requests (ECF 13; ECF 15; ECF
16) that he enjoys a right to counsel under the Sixth
Amendment. However, as I explained in the Order of March 5,
2018 (ECF 5), the Sixth Amendment ...