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April 5, 1994



The opinion of the court was delivered by: CONSTANCE BAKER MOTLEY

MOTLEY, District Judge.

 This action is presently before this court on defendants' renewed motion for recusal. For the reasons stated herein, their motion is denied.


 Plaintiff was in the custody of the New York State Department of Correctional Services ("DOCS") from approximately April 1973 until his release in March 1990. Pl.'s Trial Memo. at 4. In May 1986, plaintiff filed a complaint in this District alleging that his transfers to various prisons in the New York State Correctional System were in retaliation for exercising his constitutional rights while in prison. During his incarceration, plaintiff claims that he was deprived of his constitutional rights to free speech, freedom of religion, and due process of law by defendants because: 1) he was a member of the Black Panther Party; 2) he was convicted of the attempted murder of the police officers; 3) he was a practicing Sunni Muslim; and 4) he was an African-American. More specifically, plaintiff claimed that defendants, all of whom presently are New York State Corrections Officers or were Corrections Officers at the time plaintiff was incarcerated, conspired to retaliate and did retaliate against him by: 1) transferring him to less desirable prison facilities after he engaged in free speech and religious activities; 2) placing him in Keep-Lock in his cell; 3) placing him in a Segregated Housing Unit; and 4) placing him in Involuntary Protective Custody without due process of law. Tr., 2421-22.

 Plaintiff's case was originally assigned to the Honorable Kimba M. Wood but was reassigned to this court in accordance with Local Rule 13 because it was ready for trial. Following a six-week jury trial held in November and December 1993, the court granted a mistrial after the jury failed to reach a verdict on December 3, 1993.

 After defendants concluded their case, they orally moved for the court's disqualification based primarily on comments which the court made during the course of the trial. Tr. 2119-21. The court denied defendant's motion but granted them the opportunity to renew their motion after trial. Tr. 2225. As a result, defendant's filed the current motion on February 3, 1994.

 Defendants have moved under §§ 144 and 455 for this court to recuse itself from any retrial of this case. To support their motion, counsel has appended a seven-page affidavit signed by defendant Thomas Coughlin requesting that the court "disqualify itself from any further proceeding in this case because a reasonable person would conclude that [its] impartiality could reasonably be questioned, and because the Court [sic] has demonstrated a personal bias against the defendants." Aff. of Thomas A. Coughlin, P 1 ("Coughlin Aff."). According to defendants, such bias was exhibited by various statements made by plaintiff's counsel and the court both preceding and during the trial held in this matter in November and December 1993. After carefully considering defendants' allegations, their renewed motion for recusal is denied.


 Standard for Motion to Recuse

 Title 28 U.S.C. § 144 requires recusal "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. . . ." It further requires that the affidavit "state the facts and reasons for the belief that bias or prejudice exists" and be "accompanied by a certificate of counsel of record stating that it is made in good faith."

 Similarly, § 455 provides in pertinent part: "Any justice, judge or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned," such as "where he has a personal bias or prejudice concerning a party. . . ." 28 U.S.C. §§ 455(a), 455(b)(1) (1993).

 While courts have generally considered § 455 broader in application than its counterpart, the analysis and standards under both sections are the same. See Apple v. Jewish Hospital and Medical Center, 829 F.2d 326, 333 (2d Cir. 1987) (§§ 144 and 455 should be read in pari materia). For instance, both sections require that the alleged personal bias or prejudice stem from an extrajudicial source. King v. United States, 434 F. Supp. 1141, 1144 (S.D.N.Y. 1977), aff'd, 576 F.2d 432 (2d Cir.), cert. denied, 439 U.S. 850, 58 L. Ed. 2d 154, 99 S. Ct. 155 (1978). Moreover, the standard for recusal under both § 144 and § 455 is whether a reasonable person, knowing and understanding all relevant facts, would recuse the judge. Person v. General Motors Corp., 730 F. Supp. 516, 518 (W.D.N.Y. 1990); Allen-Myland v. International Business Machines, 709 F. Supp. 491, 493 (S.D.N.Y. 1989) (quoting In re Drexel Burnham Lambert, Inc., 861 F.2d 1307, 1313 (2d Cir. 1988)).

 When considering a recusal motion, a judge must accept all factual allegations raised in the affidavit as true, even if she knows them to be false. Blank v. Sullivan, 418 F. Supp. 1, 2 (S.D.N.Y. 1975) (Motley, J.). However, this does not prohibit the court from inquiring into the legal sufficiency of the affidavit. If the allegations are found insufficient as a matter of law, the judge has a duty not to recuse herself. Id. See also, National Auto Brokers Corp. v. General Motors Corp., 572 F.2d 953, 958 (2d Cir. 1978), cert. denied, 439 U.S. 1072, 59 L. Ed. 2d 38, 99 S. Ct. 844 (the mere filing of an affidavit does not result in automatic recusal; the judge has a duty to inquire into the legal sufficiency of the complaint); King, 434 F. Supp. at 1144 (judge has a duty to pass on the legal sufficiency of the complaint). The affidavit must "show a true personal bias and allege specific facts" as opposed to mere conclusions and generalizations. United States v. International Business Machines, 475 F. Supp. 1372, 1379 (S.D.N.Y. 1979) ("IBM I"). Moreover, the judge is presumed to be impartial and a substantial burden is imposed on the affiant to prove otherwise. Farkas v. Ellis, 768 F. Supp. 476, 478 (S.D.N.Y. 1991); IBM I, 475 F. Supp. at 1379.

 Even if this court accepts defendants' allegations as true, they do not support a finding of personal bias or prejudice under either § 144 or § 455 for three important reasons. First, defendants have submitted an untimely affidavit that fails to conform to the requirements established under § 144. Second, they have presented no evidence to substantiate their allegations that the court was subjected to the same FBI investigation of which plaintiff complains. Finally, the remaining ...

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