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Flynn v. Koepke

United States District Court, D. Montana, Missoula Division

July 16, 2019

KENNETH JAY FLYNN, Plaintiff,
v.
SALENE KOEPKE, KIRSTEN PAPST, KAREN TOWNSEND, ROBERT THOMPSON, JOHN SMITH, SCOTT ALBERS, HERMAN WATSON III, HERMAN WATSON IV, MARK FULLERTON, and COLIN STEVENS, Defendants.

          ORDER

          Jeremiah C. Lynch, United States Magistrate Judge.

         Plaintiff Kenneth Flynn, appearing pro se, filed a motion requesting that I, as the undersigned United States Magistrate Judge, recuse myself from presiding over this action. Flynn perceives that I am biased against him, but he relies only upon the orders I have entered in this case. He complains that on April 30, 2019, I entered an order denying his motion to change venue for this action, and on June 10, 2019, I entered an order denying his motion for appointment of counsel to represent him.

         Although Flynn does not identify the legal grounds for his motion, the Court will liberally construing the motion as filed under either 28 U.S.C. § 144, or 28 U.S.C. § 455. But for the reasons discussed, the referenced orders denying Flynn's motions are not grounds for recusal under either federal statute.

         A. 28 U.S.C. § 144

         To the extent Flynn's motion can be construed as filed under 28 U.S.C. § 144, he has not established that my disqualification is warranted.

         Section 144 of Title 28 of the United States Code provides, in relevant part, as follows:

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 any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding. [... The party's affidavit] shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. § 144.

         The certificate of good faith required under Section 144 must be provided by a member of the bar, or the movant's counsel of record. See Robinson v. Gregory, 929 F.Supp. 334, 337-38 (S.D. Ind. 1996). Consequently, a pro se litigant who has not provided a certificate of good faith from a member of the bar may not employ the disqualification procedures set forth in 28 U.S.C. § 144. Id. See also Jimena v. UBS AG Bank, 2010 WL 2650714, *3 (E.D. Cal. 2010) and United States v. Briggs, 2007 WL 1364682, *1 (D. Idaho 2007).

         Because Flynn's motion is not accompanied by a certificate of counsel, Section 144 does not provide a basis for my disqualification.

         B. 28 U.S.C. § 455

         To the extent Flynn's motion can be construed as seeking my disqualification under 28 U.S.C. § 455, the motion must be denied.

         Section 455 is a self-executing disqualification statute. It provides in relevant part as follows:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his ...

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