The opinion of the court was delivered by: Byron G. Cudmore, U.S. Magistrate Judge:
Thursday, 01 March, 2012 04:03:44 PM
Clerk, U.S. District Court, ILCD
This matter comes before the Court on Motion to Recuse Honorable U.S. Magistrate Judge Byron G. Cudmore for His Personal Interest In This Case, Prejudice and Bias Against This Pro Se Plaintiff Pursuant to 28 U.S.C. §§ 144, 455 (d/e 209) (Motion). For the reasons set forth below, the Motion is DENIED.
The Court first notes that Plaintiff Sharon Murray is proceeding pro se, and so, cannot make the Motion under 28 U.S.C. § 144. Section 144 requires, inter alia, that a party must file an affidavit with facts and reasons for the belief that bias exists, and also "a certificate of counsel of record stating that [the affidavit] is made in good faith." Murray cannot provide such a certificate because she has no counsel of record. See Robinson v. Gregory, 929 F. Supp. 334, 337-38 (S.D. Ind. 1996); Cohee v. McDade, 472 F. Supp. 2d 1082, 1083-84 (S.D. Ill. 2006). The Court, thus, addresses the Motion as a motion to recuse brought under 28 U.S.C. § 455.
Section 455(a) requires a federal judge to recuse himself, "in any proceeding in which his impartiality might reasonably be questioned."
28 U.S.C. § 445(a). This issue is determined by an objective standard: Section 455(a) asks whether a reasonable person perceives a significant risk that the judge will resolve the case on a basis other than the merits. This is an objective inquiry. An objective standard is essential when the question is how things appear to the well-informed, thoughtful observer rather than to a hypersensitive or unduly suspicious person . . . . Trivial risks are endemic, and if they were enough to require disqualification we would have a system of preemptory strikes and judge-shopping, which itself would imperil the perceived ability of the judicial system to decide cases without regard to persons. A thoughtful observer understands that putting disqualification in the hands of a party, whose real fear may be that the judge will apply rather than disregard the law, could introduce a bias into adjudication. Thus the search is for a risk substantially out of the ordinary.
Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996) (quoting Matter of Mason, 916 F.2d 384, 385-86 (7th cir. 1990)) (citations omitted) (ellipsis in the original).
Murray presents no evidence that circumstances exist in this case that would cause a well-informed, thoughtful observer to question the impartiality of this Judge. This Judge has no financial interest in Defendant Nationwide Better Health and does not know the individual Defendants Barbara Ley and Cynthia Northrup. This Judge has no knowledge of Plaintiff Murray except through the proceedings she has brought in this Court. The Court finds no basis under which a well-informed, thoughtful observer to question the impartiality of this Judge.
Murray raises the fact that she brought a prior proceeding in this Court, Case No. 08-3159 (Prior Proceeding), and this Judge made rulings in the Prior Proceeding. She argues that this circumstance creates a basis to question this Judge's impartiality. The Court disagrees. A well-informed thoughtful observer would not conclude that this circumstance would create a basis to question this Judge's impartiality. The implication would be that a judge could not hear two cases brought by the same litigant. That cannot be. Furthermore, the Prior Proceeding is closed. The District Court entered summary judgment against Murray and that decision was affirmed by the Court of Appeals. Murray v. AT&T Mobility LLC, 374 Fed. Appx. 667 (7th Cir. 2010). Plaintiff Murray has had the opportunity to appeal any objectionable decisions in the Prior Proceedings. The Court of Appeals has considered her appeal and upheld the decisions this Court. A well-informed thoughtful observer would not question this Judge's impartiality because he made decisions in a closed matter that has been affirmed on appeal. This Court finds no basis for recusal under § 455(a).
Murray also moves for recusal based on prejudice, bias, and interest in the case. Section 455(b)(1) states that a federal judge must recuse himself, "[w]here he has a personal bias or prejudice concerning a party."
28 U.S.C. § 455 (b)(1). The inquiry is again an objective one, and bias or prejudice must be shown by compelling evidence:
In determining whether a judge must recuse under § 455(b)(1), "the question is whether a reasonable person would be convinced the judge was biased.". . . Moreover, recusal is required only if actual ...