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Hennessey v. Atlantic County Dept. of Public Safety

June 30, 2009

FRANK T. HENNESSEY, RICHARD BOLER, AND KHALID BUTTS, PLAINTIFFS,
v.
ATLANTIC COUNTY DEPT. OF PUBLIC SAFETY, ET. AL., DEFENDANTS.



The opinion of the court was delivered by: Hillman, District Judge

OPINION

In this case concerning prisoners' conditions of confinement claims, presently pending before the Court are: (1) defendants' motions to dismiss all three plaintiffs' claims for their failure to comply with discovery and the prosecution of their case, (2) plaintiff Richard Boler's appeal of orders entered by the Honorable Joel S. Schneider, U.S.M.J. regarding discovery, and (3) plaintiff Frank Hennessey's motion for the recusal of the undersigned and Magistrate Judge Schneider. For the reasons expressed below, plaintiffs' motions will be denied and defendants' motions will be granted.

I. BACKGROUND

On January 12, 2006, pro se plaintiffs, Frank T. Hennessey, Richard Boler, and Khalid Butts, along with numerous other prisoner plaintiffs*fn1 filed a complaint against defendants alleging unconstitutional conditions of confinement at the Atlantic County Justice Facility.*fn2 Defendants have moved for the dismissal of plaintiffs' claims for their failure to participate in discovery and for their disregard of the court's discovery orders. Plaintiffs Butts and Hennessey have not opposed this motion. Hennessey, however, has filed a motion for the recusal of this Court and Magistrate Judge Schneider. Plaintiff Boler has opposed defendants' motion, and has also filed objections to Judge Schneider's discovery orders.

II. DISCUSSION

A. Jurisdiction

Because plaintiffs have brought claims pursuant to 42 U.S.C. § 1983 for alleged violations of their constitutional rights, this Court has jurisdiction of this matter pursuant to 28 U.S.C. § 1331.

B. Analysis

1. Hennessey's Motion for Recusal

Plaintiff Hennessey argues for the recusal of the undersigned and Magistrate Judge Schneider for several reasons: (1) the delay in the pro se complaint screening process; (2) the failure of the complaint to be filed as a class action; (3) the dismissal of many plaintiffs for their failure to comply with the rules concerning providing the court with current addresses; (4) the delay in receiving pro bono legal assistance; (5) the granting of that pro bono legal counsel's motion to withdraw without a formal hearing or without hearing Hennessey's "version of events"; (6) that the "lies" told in legal counsel's motion tainted the rest of the case; and (7) the court's "obvious bias" (e.g., "abuses of discretion," "judicial absurdities," "overlooking obvious truths").

The recusal of judges is governed by 28 U.S.C. §§ 144 and 455. Pursuant to 28 U.S.C. § 144, a federal district court judge must recuse if a party "files a timely and sufficient affidavit that the judge ... has a personal bias or prejudice either against [that party] or in favor of any adverse party." Moreover, regardless of whether a party files a recusal motion, a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a).

Hennessey focuses much of his motion on the issue of pro bono counsel. Judge Schneider denied his motion for reconsideration on that issue, and Hennessy appealed to this Court, which affirmed Judge Schneider's order. This unfavorable ruling does not form an adequate basis for recusal. Liteky v. United States, 510 U.S. 540, 555 (1994) ("[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion.)"; SecuraComm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir. 2000). Instead, Hennessey's remedy would be to appeal those rulings with which he disagrees. In re Vazquez, 285 Fed. Appx. 931, 932 (3d Cir. 2008).

With regard to Hennessey's claims of bias, which he claims is evidenced by delay, dismissal of other plaintiffs, and the denial to reappoint pro bono counsel, these claims cannot form the basis for recusal. See id. Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990)(stating that any disagreement a party has with a judge's "legal and procedural rulings certainly cannot be equated with the showing required to so reflect on [the judge's] impartiality as to dictate recusal"); Haines v. Liggett Group, Inc., 975 F.2d 81, 89 (3d Cir. 1992) (stating that conclusory and speculative statements are insufficient to establish a clear and indisputable right to the relief a party seeks); United States v. Vespe, 868 F.2d 1328, 1340 (3d Cir. 1989) (stating that "[c]onclusory statements and opinions" made by a litigant in his 28 U.S.C. ยง 144 affidavit "need not be credited"). Recusal of a judge is proper only if "it appears that he or she ...


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