United States District Court, N.D. Illinois, Eastern Division.
B. Michael Schneider, Plaintiff,
County of Will and Michael O’Leary, Defendants.
MEMORANDUM OPINION AND ORDER
Honorable Thomas M. Durkin United States District Judge.
Michael Schneider, pro se, alleges that Defendants held him
in jail for too long after an Illinois circuit judge ordered
him jailed for criminal contempt. Mr. Schneider has moved to
recuse the undersigned judge from the case pursuant to 28
U.S.C. § 144 and 28 U.S.C. §§ 455(a) and (b).
For the following reasons, that motion is denied.
a motion to recuse under 28 U.S.C. § 455, which simply
requires the reasonable appearance of bias, a motion to
disqualify under § 144 requires a showing of
actual bias.” Hoffman v. Caterpillar,
Inc., 368 F.3d 709, 718 (7th Cir. 2004) (emphasis in
original). Section 144 provides:
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of an adverse party,
such judge shall proceed no further therein, but another
judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not
less than ten days before the beginning of the term at which
the proceeding is to be heard, or good cause shall be shown
for failure to file it within such time. A party may file
only one such affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating that it is made
in good faith.
judge must recuse himself under § 144 if a party files a
timely and sufficient affidavit suggesting personal prejudice
against the party.” West v. Litscher, 209 Fed.
App’x 557, 559 (7th Cir. 2006). “[O]nly personal
animus or malice on the part of the judge can establish
actual bias.” Hoffman, 368 F.3d at 718.
“[J]udicial rulings alone will almost never constitute
a valid basis for disqualification under § 144.”
Id. “A court may only credit facts that are
sufficiently definite and particular to convince a reasonable
person that bias exists; simple conclusions, opinions, or
rumors” or “mere conjecture and supposition . . .
are insufficient.” Id. “And while a
court must assume the truth of the [sufficiently described]
factual assertions, it is not bound to accept the
movant’s conclusion as to the facts’
significance.” Id. “A trial judge has as
much obligation not to recuse himself when there is no
occasion for him to do so [under § 144] as there is for
him to do so when the converse prevails.” Id.
(reference to § 144 in the original).
Schneider’s motion is based largely on the
Court’s rejection of his argument that the Will County
State’s Attorney had improperly appointed Martin
McManaman and Patrick Moran of the firm Lowis & Gellen to
represent Defendants in this case. Mr. Schneider first raised
this issue in 2008 when Judge Andersen was presiding, and
Judge Andersen denied Mr. Schneider’s motion to
disqualify defense counsel. See R. 29. Six years
later, Mr. Schneider sought reconsideration of that ruling,
see R. 255, which the Court denied. See R.
261. Mr. Schneider then filed an interlocutory appeal with
the Seventh Circuit regarding this issue. See R.
263. After the Seventh Circuit denied his appeal as
premature, see R. 282, Mr. Schneider again made a
motion for reconsideration on this issue, see R.
293, which the Court denied. See R. 301. Mr.
Schneider yet again sought reconsideration, see R.
302, which the Court again denied. See R. 304. Mr.
Schneider then sought permission to file a second
interlocutory appeal on this issue, see R. 306,
which the Court denied. See R. 311. Contrary to Mr.
Schneider’s allegation that the Court made these
rulings simply because Judge Andersen had initially rejected
Mr. Schneider’s arguments, the record reflects that the
Court considered Mr. Schneider’s arguments apart from
Judge Andersen’s prior ruling. In fact, Mr. Schneider
acknowledges that in addressing his motion on this issue the
Court required defense counsel to produce the documents
supporting their appointment as counsel in this case.
See R. 299. These documents satisfied the Court that
defense counsel were duly appointed. See R. 301.
course of addressing this issue with Mr. Schneider, the Court
told him that this issue was irrelevant to the underlying
facts of his case, and that he was pursuing this issue to the
detriment of his ability to prosecute the merits of the case.
He was choosing to raise and re-raise this issue and was
failing to prepare for trial. For that reason, and because
the Court had rejected his argument regarding defense
counsel’s appearance, the Court warned Schneider that
he risked sanctions if he continued to press this issue.
See R. 301; R. 304. The Court never imposed such
sanctions on Mr. Schneider.
Schneider’s motion for recusal based on my rejection of
his argument that defense counsel was improperly appointed
fails for two reasons. First, it is untimely. Mr. Schneider
states that he “lost all hope of receiving a fair trial
before Judge Durkin” with regard to this particular
issue on “March 19, 2016.” R. 359 at 15. But Mr.
Schneider did not file his recusal motion until August 18,
2016, four days before we were to begin his jury trial.
See R. 359. A five month delay does not demonstrate
that Mr. Schneider filed his motion “at the earliest
moment after the [he] acquire[d] knowledge of the facts that
[allegedly] demonstrate the basis for the
disqualification.” Franzen v. Ellis Corp.,
2004 WL 406822, at *1 (N.D. Ill. Feb. 12, 2004) (citing
United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir.
1983)). Thus, recusal is not warranted because Mr.
Schneider’s motion is untimely.
and more substantively, recusal is not proper on the basis of
Mr. Schneider’s disagreement with the Court’s
legal decisions. Mr. Schneider must demonstrate actual bias,
meaning that the Court’s “alleged bias is
personal rather than judicial.” Franzen, 2004
WL 406822, at *1. The Court considered and rejected Mr.
Schneider’s argument that defense counsel were
improperly appointed. The Court provided reasons for these
decisions, and at a certain point it became counterproductive
for the Court to continue to repeatedly address this same
issue as it does not pertain to the merits of Mr.
Schneider’s claim. To the extent Mr. Schneider alleges
that the Court “failed to give adequate reasons”
for its decisions, or “clearly and deliberately
misconstrued controlling Illinois law, ” R. 359 at 20,
this is merely Mr. Schneider’s opinion, and describes a
judicial disagreement as opposed to a personal bias. Mr.
Schneider’s opinion in this regard does not demonstrate
that the Court has a personal bias against him, and thus does
not constitute a sufficient basis to support
Schneider also argues that the Court has rushed him to trial
without giving him the opportunity to adequately discover the
necessary evidence or adequate time to prepare. Specifically,
Mr. Schneider contends that the Court “knew of [his]
August 11, 2014 eviction . . . by the Will County Sheriff . .
. and the lost discovery evidence” that resulted from
that eviction, but that the Court ruled that “Schneider
would not be permitted to obtain new discovery.” R. 359
at 10. There is no basis for this allegation. According to
Mr. Schneider, his eviction occurred on August 11, 2014. He
informed the Court of that fact at a hearing on September 3,
2014, and requested postponement of his trial due to his
recent eviction. The Court granted that request and
rescheduled the trial to February 2, 2015. This was nearly
six months after Mr. Schneider’s eviction, and he
assured the Court that this date would be “no
problem.” Nevertheless, the Court subsequently agreed
to postpone the trial twice more at Mr. Schneider’s
request, finally setting the trial date of August 22, 2016.
Court’s willingness to repeatedly postpone Mr.
Schneider’s trial date is contrary to Mr.
Schneider’s allegation that the Court
“insisted” that his trial go forward on April 25,
2016, despite Mr. Schneider suffering a second eviction on
March 31, 2016. R. 359 at 25. The fact that his trial was
postponed until August also belies Mr. Schneider’s
allegation that he has been prejudiced by the fact that the
judge in his state court proceedings was unavailable to
testify in April 2016. See Id. at 26. That state
court judge was available to testify in the trial
scheduled for August 22, 2016.
whenever Mr. Schneider has reported that he lacked certain
documents, the Court has ordered defense counsel to furnish
Mr. Schneider with copies of those documents. Contrary to Mr.
Schneider’s allegations, see R. 359 at 24, the
Court also gave him permission to seek discovery of
electronic recordings of the state court proceedings that
underlie his claims and explained how he should contact the
Circuit Court to learn of the availability of such
recordings. See R. 298. The Court’s efforts to
accommodate Mr. Schneider’s discovery requests (all of
which were untimely) demonstrate that his allegations that
the Court has exhibited “rage and antagonism at
[him]” are conclusory and unfounded. In over three
years on the bench the undersigned judge has neither felt,
nor exhibited, “rage” towards any party.
Schneider also alleges that the Court appointed the firm of
Morgan Lewis & Bockius LLP to assist him as a
“pretext to limit [his] claims and proceed to trial on
the limited claims of deliberate indifference to [his] right
to early release.” R. 359 at 11. This argument is not a
basis for the undersigned judge’s recusal. Presumably,
Mr. Schneider was unhappy with his Morgan Lewis attorneys
because they would not pursue his theory that defense counsel
were improperly appointed. But he admits that Morgan Lewis
sought to focus on the merits of his claims-whether
Defendants were deliberately indifferent to the length of
time Mr. Schneider was in jail. Id. Further, defense
counsel stated on the record on August 18, 2016 that Mr.
Schneider’s Morgan Lewis attorneys were diligent in
their representation and it was readily apparent that they
were prepared to prosecute Mr. Schneider’s claims at
the trial set for August 22, 2016. This is unsurprising
considering Morgan Lewis is one of the preeminent law firms
in the United States. Although Mr. Schneider may be
disappointed that his Morgan Lewis attorneys refused to
pursue his theory that defense counsel were improperly
appointed, this was an unreasonable expectation considering
the Court’s prior rulings on this issue. Further, Mr.
Schneider’s misconception regarding what is relevant to
the merits of his case is not a basis to conclude that the
Court appointed Morgan Lewis with the intent to stifle Mr.
Schneider’s desire to vindicate his theory that defense
counsel were improperly ...