Onishi v. Chapleau

TOSHISADA ONISHI, Plaintiff, v. DAVID CHAPLEAU et al., Defendants.

CAUSE NO. 3:19-cv-1048 DRL-MGG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

May 4, 2020

OPINION & ORDER

Toshisada Onishi has filed a motion to disqualify the presiding judge and magistrate judge under 28 U.S.C. §§ 144 and 455 and the Fourteenth Amendment's Due Process Clause. He filed an affidavit in support. Because his alleged grounds for recusal are without merit, the court denies the motion as to the presiding judge. In addition, the court directs entry of judgment.

DISCUSSION

A. The Court Denies the Motion to Recuse the Presider.

A judge must recuse only when the circumstances merit. Hoffman v. Caterpillar, Inc., 368 F.3d 709, 717 (7th Cir. 2004) (citing United States v. Ming, 466 F.2d 1000, 1004 (7th Cir. 1972)). Mr. Onishi says the presiding judge must recuse under both recusal statutes (28 U.S.C. §§ 144 and 455) and the Fourteenth Amendment's Due Process Clause.

The court starts with the constitutional argument. Mr. Onishi offers no argument or authority on the due process claim, so the court needn't in truth address it. See Gross v. Town of Cicero, 619 F.3d 697, 704-05 (7th Cir. 2010) ("not this court's responsibility to research and construct the parties' arguments, and conclusory analysis will be construed as waiver") (quoting APS Sports Collectibles, Inc. v. Sports Time, Inc., 299 F.3d 624, 631 (7th Cir. 2002)); United States v. Tockes, 530 F.3d 628, 633 (7th Cir. 2008) ("Unsupported and undeveloped arguments . . . are considered waived."). In addition, the Fourteenth Amendment would plainly seem not to apply here. Its due process command applies to the states whereas the Fifth Amendment applies to the federal government. U.S. Const. amends. V, XIV § 1; see Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

Still, in an abundance of caution, to ensure the fairness of this proceeding, and presuming the coextensive nature of constitutional due process under the two amendments for recusal purposes, the court notes that due process requires recusal when the likelihood of bias "is too high to be constitutionally tolerable." Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Due process guarantees "an absence of actual bias" from a judge. Williams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). The question is not whether a judge "harbors an actual, subjective bias, but instead whether, as an objective matter, the average judge in his position is likely to be neutral, or whether there is an unconstitutional potential for bias." Id. (quoting in part Caperton, 556 U.S. at 881) (internal quotations omitted). Recusal is constitutionally warranted when there is actual bias or the appearance of bias with a high risk of actual bias. Suh v. Pierce, 630 F.3d 685, 691 (7th Cir. 2011). Due process rights are violated when a judge "has prejudged the facts or the outcome of the dispute before [him]." Franklin v. McCaughtry, 398 F.3d 955, 962 (7th Cir. 2005).

Mr. Onishi has not shown any actual basis by the presider. He has not established even an appearance of bias based on the circumstances that he offers in his motion, so there likewise is not a high risk of actual bias to require recusal under constitutional due process. See Suh, 630 F.3d at 691 ("most matters relating to judicial disqualification d[o] not rise to a constitutional level") (quoting FTC v. Cement Inst., 333 U.S. 683, 702 (1948)). For all these reasons, his motion on this basis must be denied.

Mr. Onishi next says recusal is mandated by statute. The first statute provides that a judge must recuse himself from "any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). This is an "objective inquiry," In re Mason, 916 F.2d 384, 385 (7th Cir. 1990), "from the perspective of a reasonable observer who is informed of all the surrounding facts and circumstances," Cheney v. United States Dist. Court for Dist. of Columbia, 541 U.S. 913, 924 (2004) (Scalia, J., sitting alone). The reasonable observer is a "well-informed, thoughtful observer rather than . . . a hypersensitive or unduly suspicious person." O'Regan v. Arbitration Forums, Inc., 246 F.3d 975, 988 (7th Cir. 2001) (quoting In re Mason, 916 F.2d at 386). A reasonable person "appreciate[s] the significance of the facts in light of relevant legal standards and judicial practice and can discern whether any appearance of impropriety is merely an illusion." In re Sherwin-Williams Co., 607 F.3d 474, 478 (7th Cir. 2010).

The second standard, found in marrying two similarly worded statutes, requires recusal when the judge has a "personal bias or prejudice" against a party in the proceeding. 28 U.S.C. §§ 144, 455(b)(1). These two statutes present identical standards. Brokaw v. Mercer Cty., 235 F.3d 1000, 1025 (7th Cir. 2000) ("Because the phrase 'personal bias or prejudice' found in Section 144 mirrors the language of Section 455(b)," the court analyzes the two statutory methods of disqualification identically). In determining whether a judge must recuse under this actual bias standard, "the question is whether a reasonable person would be convinced the judge was biased." Hook v. McDade, 89 F.3d 350, 355 (7th Cir. 1996) (quotation omitted). Recusal is only required here "if actual bias or prejudice is 'proved by compelling evidence.' . . . [f]rom an extrajudicial source." Id. (quoting United States v. Balistrieri, 779 F.2d 1191, 1201 (7th Cir. 1985), overruled on other grounds, Fowler v. Butts, 829 F.3d 788, 793 (7th Cir. 2016)); see O'Regan, 246 F.3d at 988. Even "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge," unless the remarks "reveal an opinion that derives from an extrajudicial source." Liteky v. United States, 510 U.S. 540, 555 (1994). Moreover, "a judge's ordinary efforts at courtroom administration—even a stern and short tempered judge's ordinary efforts at courtroom administration—remain immune." Grove Fresh Distribs., Inc. v. John Labatt, Ltd., 299 F.3d 635, 640 (7th Cir. 2002) (quoting Liteky, 510 U.S. at 556).

Before engaging the substance of Mr. Onishi's motion, the court pauses to address whether the motion was timely filed. This circuit has held that a motion to disqualify a judge under 28 U.S.C. § 455 must be considered no matter how belatedly it is made, see SCA Servs., Inc. v. Morgan, 557 F.2d 110, 117 (7th Cir. 1977), though the vitality of that holding remains in question, see, e.g., Schurz Commc'ns v. FCC, 982 F.2d 1057, 1060 (7th Cir. 1992); Union Carbide Corp. v. U.S. Cutting Serv., Inc., 782 F.2d 710, 716-17 (7th Cir. 1986); United States v. Murphy, 768 F.2d 1518, 1539 (7th Cir. 1985). The court will not view this motion, based on 28 U.S.C. § 455, untimely because of that seeming circuit conflict and because its substance requires its denial in any event.

28 U.S.C. § 144, by contrast, requires that a motion be "timely" filed with a "sufficient affidavit." This circuit has held that a § 144 motion is "not timely unless filed at the earliest moment after the movant acquires knowledge of the facts demonstrating the basis for such disqualification." United States v. Sykes, 7 F.3d 1331, 1339 (7th Cir. 1993) (citations and quotations omitted). At least one circuit has held that a § 144 motion is also untimely if it is filed after the court's dismissal of the complaint. See Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350, 1356 (3d Cir. 1990). Because Mr. Onishi waited several weeks after the court dismissed his complaint with prejudice to raise his § 144 claim and because many of the claims he presented were known well before that time—such as the presiding judge's appointment to the bench by a Republican administration—the court finds that Mr. Onishi's § 144 claim is untimely. Nevertheless, because a final judgment has not been entered in this case, the court turns to consider the merit of the motion in total.

Most of Mr. Onishi's arguments for recusal are rehashed arguments that the presiding judge has already addressed in both the court's opinion dismissing this case with prejudice (ECF 73) and in the denial of Mr. Onishi's motion to reconsider (ECF 79). These arguments include that no nude photographs were submitted by Mr. Onishi (ECF 85 ¶ 5(i)); that he complied in good faith with the Federal Rules of Civil Procedure (id. ¶¶ 5(ii), 5(vii)); that the court incorrectly docketed a motion he sent to the clerk's office but didn't want docketed (id. ¶¶ 5(iii), 12, 13); that the court disregarded certain statements during the show cause hearing (id. ¶¶ 5(iv), 7); that the court should have allowed him to change venue (id. ¶¶ 5(v), 5(viii), 20); that the court erred by not certifying his case as a class action (id. ¶¶ 5(vi), 10); that he should have been permitted to email chambers about his concerns (id. ¶ 5(ix)); that the court erred in dismissing the case with prejudice without the presence of Teruko Onishi (id. ¶ 5(xi)); that the court should have granted him more than a one-day extension to submit his third amended complaint (id. ¶ 7); and that the court did not adequately address the alleged misconduct of some of the defendants (id. ¶ 9). These are substantive arguments about procedure and the merits, but they're not grounds for recusal here. See Liteky, 510 U.S. at 555 ("judicial rulings alone almost never constitute valid basis for a bias or partiality recusal motion"); Grove Fresh Distribs., Inc., 299 F.3d at 640 (judge's rulings during the litigation, absent "extraordinary circumstances," are not grounds for recusal); see also Barnett v. City of Chicago, 952 F. Supp. 1265, 1269 (N.D. Ill. 1997) ("Should disqualification result merely as a result of counsel's disagreement with judicial conclusions...