United States District Court, D. South Carolina
V. HODGES UNITED STATES MAGISTRATE JUDGE.
matter is before the court on Plaintiff's motion for
recusal of the undersigned magistrate judge. [ECF No. 6]. All
pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. §
636(b) and Local Civ. Rule 73.02(B)(2)(f) (D.S.C.).
support of his motion for recusal, Plaintiff's motion
states that the case was assigned to Judge Hodges as a
“related case” to one of his prior cases. He
alleges the assigned judges made biased and specious
opinions. Id. at 1-2. He further alleges the
assigned judges knew there was “no warrant nor
affidavit to support the complaint” in his criminal
case. Id. at n. 1.
Standard of Review
Fourth Circuit has recognized that “there is as much
obligation upon a judge not to recuse himself when there is
no occasion as there is for him to do so when there
is.” Nakell v. Attorney Gen. of N.C. , 15 F.3d
319, 325 (4th Cir. 1994) (citations and quotations omitted);
see also Code of Judicial Conduct, Canon 3A(2)
(“A judge should hear and decide matters assigned,
unless disqualified . . . .”). As the Ninth Circuit
This proposition is derived from the “judicial
[p]ower” with which we are vested. See U.S.
Const. art. III, § 1. It is reflected in our oath, by
which we have obligated ourselves to “faithfully and
impartially discharge and perform [our] duties” and to
“administer justice without respect to persons, and do
equal right to the poor and to the rich.” 28 U.S.C.
§ 453. Without this proposition, we could recuse
ourselves for any reason or no reason at all; we could pick
and choose our cases, abandoning those that we find
difficult, distasteful, inconvenient or just plain boring . .
It is equally clear from this general proposition that a
judge may not sit in cases in which his “impartiality
might reasonably be questioned.” 28 U.S.C. §
455(a); see also Id. § 455(b) (enumerating
circumstances requiring recusal). We are as bound to recuse
ourselves when the law and facts require as we are to hear
cases when there is no reasonable factual basis for recusal.
See Clemens v. U.S. Dist. Ct., 428 F.3d 1175, 1179
(9th Cir. 2005); Nichols v. Alley, 71 F.3d 347, 352
(10th Cir. 1995). If it is a close case, the balance tips in
favor of recusal. United States v. Dandy, 998 F.2d
1344, 1349 (6th Cir. 1993).
United States v. Holland, 519 F.3d 909, 912 (9th
Cir. 2008) (alterations and emphasis in original).
of federal judges is generally governed by 28 U.S.C. §
That statute provides that “[a]ny justice, judge, or
magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a). In
the Fourth Circuit, this standard is analyzed objectively by
considering whether a person with knowledge of the relevant
facts and circumstances might reasonably question the
judge's impartiality. United States v. Cherry,
330 F.3d 658, 665 (4th Cir. 2003). For purposes of this
statute, the hypothetical “reasonable person” is
not a judge, because judges, who are trained to regard
matters impartially and are keenly aware of that obligation,
“may regard asserted conflicts to be more innocuous
than an outsider would.” United States v.
DeTemple, 162 F.3d 279, 287 (4th Cir. 1998).
455(a) does not require recusal “simply because of
unsupported, irrational or highly tenuous speculation,
” or because a judge “possesses some tangential
relationship to the proceedings.” Cherry, 330
F.3d at 665 (internal quotation omitted). The Fourth Circuit
recognizes that overly cautious recusal would improperly
allow litigants to exercise a “negative veto”
over the assignment of judges simply by hinting at
impropriety. DeTemple, 162 F.3d at 287. Recusal
decisions under 28 U.S.C. § 455(a) are
“fact-driven and may turn on subtleties in the
particular case.” Holland, 519 F.3d at 912.
statute provides a list of specific instances where a federal
judge's recusal is mandated, regardless of the perception
of a reasonable observer. 28 U.S.C. § 455(b). For
instance, a judge is disqualified “[w]here he has a
personal bias or prejudice concerning a party.” 28
U.S.C. § 455(b)(1). Bias or prejudice must be proven by
compelling evidence. Brokaw v. Mercer Cnty., 235
F.3d 1000, 1025 (7th Cir. 2000).
United States Supreme Court has made clear that to warrant
disqualification, “[t]he alleged bias or prejudice . .
. must stem from an extrajudicial source . . . other than
what the judge learned from his participation in the
case.” United States v. Grinnell Corp., 384
U.S. 563, ...