IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT KNOXVILLE UNITED STATES OF AMERICA, Plaintiff, v. ROCKY JOE HOUSTON, Defendant. ) ) ) ) ) ) ) ) ) No. 3:13-CR-09 (VARLAN/SHIRLEY) MEMORANDUM AND ORDER This case came before the undersigned on January 16, 2013, for an Initial Appearance on the Indictment. Assistant United States Attorney David C. Jennings appeared on behalf of the Government. The Defendant refused to be sworn and refused to enter a plea. The Defendant asked to be represented by counsel and stated that he needed time to hire an attorney. At one point, the Defendant requested that an attorney be appointed but refused to fill out the requisite financial affidavit or to accept any attorney appointed by the undersigned. Despite the Court's advising him of this rights, including his right to remain silent, the Defendant persisted in arguing that the undersigned United States Magistrate Judge must immediately recuse from this case. Defendant Houston also contended that the undersigned has a "conflict of interest" and is biased against him. The premise behind the Defendant's claims at the initial appearance is that both the Defendant and his brother Clifford Leon Houston, who is indicted separately and whom the Defendant claims will be a witness in this case, have both sued the undersigned in 2005 (3:05-cv345) and 2003 (3:03-cv-127) respectively. This premise is true in part. The Court acknowledges and pointed out to the Defendant at the initial appearance, the Defendant and his brother did "sue" Case 3:13-cr-00009 Document 10 Filed 01/23/13 Page 1 of 4 PageID #: 24 the undersigned by placing my name in the caption of their respective civil suits, which named numerous other defendants. However, the Court pointed out that in neither lawsuit were there any allegations made against the undersigned, nor was my name even mentioned in the body of the complaints as having done any act.1 Because the undersigned had only recently taken the bench in 2002, shortly before these lawsuits were filed, the undersigned presumed the addition of my name was a mistake. The actions against the undersigned were accordingly dismissed. [Case No. 3:03-cv127, Doc.49; Case No. 3:05-cv-345, Doc. 9] The Defendant contends that his action of merely filing a lawsuit with this Judge's name included in the caption only is sufficient to create a conflict or the appearance of impropriety in the undersigned presiding over pretrial matters in a separate criminal proceedings some seven years later. It should be noted that the Defendant and /or his brother have sued all the active federal judges in the Knoxville Division of the Eastern District of Tennessee (Chief District Judge Varlan, District Judge Phillips, and Magistrate Judge Guyton) along with other sitting federal judges in this district. The Defendant contends that all of these judges are required to recuse from this criminal case and proposes that the judges of this district ask the Supreme Court of the United States to obtain an "unbiased judge" from another district to conduct this case. The Defendant had submitted no particularized facts supporting any bias, partiality, or conflict of interest on the part of the undersigned or any judge in the Knoxville Division. First, the Court finds that the Defendant's own outbursts, repeated interruptions, and 1 In fact, at the initial appearance, the Court asked the Defendant what the undersigned was sued for or had done to be sued, and he could not answer. 2 Case 3:13-cr-00009 Document 10 Filed 01/23/13 Page 2 of 4 PageID #: 25 disrespectful conduct toward the undersigned2 at the initial appearance do not suffice to create either a conflict or a basis for recusal. To hold otherwise would only create an opportunity for, and encourage, others to exhibit such behavior strategically as a means of seeking the disqualification of a judge. Second and similarly, simply filing a lawsuit naming a judge in the caption without any allegations in the suit cannot serve as a basis for the judge's recusal. The Court finds that this too would create an opportunity for, and encourage, others to try to manipulate the system for strategic reasons in order to obtain disqualifications in such manner. At the initial appearance, the Defendant repeatedly referred to 28 U.S.C. ? 455 as the basis for his allegations that the Court has exhibited actual partiality or an appearance of partiality or that the Court's impartiality might reasonably be questioned. To be clear, the Court holds no animosity or bias towards this Defendant or his brother for lawsuits filed seven and nine years ago and in which the undersigned was properly dismissed. The Court is mindful that public perceptions of partiality are important with respect to the public's perception of and confidence in the courts. However, the question of partiality is to be viewed by an objective standard. The Court finds that a reasonable, objective, and well-informed person in the community could not reasonably question the Court's impartiality on the basis advanced by the Defendant or under these circumstances. In fact, the erroneous inclusion of a judge's name in a lawsuit is not a basis for a recusal. Sao Paulo State of Federative Republic of Brazil v. American Tobacco Co., 535 U.S. 229, 231-32 (2002). Likewise, the fact that a party files a lawsuit against a judge does not mean that judge must recuse him or 2 The Court notes that the Defendant exhibited the same conduct toward Judge Guyton at the January 14, 2013 initial appearance on a Criminal Complaint. 3 Case 3:13-cr-00009 Document 10 Filed 01/23/13 Page 3 of 4 PageID #: 26 herself. United States v. Whitesel, 543 F.2d 1176, 1181 (6th Cir. 1996); Nabkey v. Gibson, 923 F. Supp. 117, 122 (W. D. Mich. 1990) (holding that a party "cannot disqualify a judge simply by instituting an action against him"); see also Callihan v. Eastern Ky Production Credit Ass'n, No. 89-5578, 1990 WL 12186, *2 (6th Cir. Feb. 13, 1990) (determining that "[r]ecusal is not required simply because one of the parties has initiated litigation against the presiding judge").3 The Court appreciates the fact that the Defendant may not be well versed in these legal matters and may harbor a belief that his ideas are correct. Accordingly, despite the Defendant's apparent refusal to listen or to accept the Court's explanation or rulings, the Court tried to explain these matters to Defendant at his initial appearance. The Court has memorialized its explanation and rulings on this issue herein. The Clerk of Court is DIRECTED to mail a copy of this Memorandum and Order to the Defendant at the Knox County Jail. IT IS SO ORDERED. ENTER: s/ C. Clifford Shirley, Jr. United States Magistrate Judge 3 Other circuits have similarly found that a party's filing of a lawsuit against a judge does not require the judge to recuse. Thomas v. Eva's Village Sheltering Program, 162 F. App'x 154, 157 (3rd Cir. 2006) (observing that "to require disqualification every time a litigant files suit against a judge would allow litigants to improperly 'judge shop'"); In re Mann, 229 F.3d 657, 658 (7th Cir. 2000) (holding that the petitioner "has not cited any rule or decision supporting the sweeping idea that a judge must automatically disqualify herself from a lawsuit simply because a disgruntled litigant currently alleges (or has previously alleged) judicial misconduct. Indeed, if that were the rule, litigants displeased with Judge A's adverse rulings could easily manipulate the system by filing a misconduct complaint, thereby disqualifying Judge A from hearing the case, in the hopes that the case would then be assigned to Judge B who might be more sympathetic to their cause"); United States v. Studley, 783 F.2d 934, 939-40 (9th Cir. 1986) (holding that a "judge is not disqualified by a litigant's suit or threatened suit against him, . . . or by a litigant's intemperate and scurrilous attacks"); United States v. Grismore, 564 F.2d 929, 933 (10th Cir. 1977) (concluding that a "judge is not disqualified merely because a litigant sues or threatens to sue him"). 4 Case 3:13-cr-00009 Document 10 Filed 01/23/13 Page 4 of 4 PageID #: 27