United States District Court, D. Hawaii
ORDER DENYING MOTION TO RECUSE CHIEF JUDGE J. MICHAEL
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE
20, 2016, Plaintiff Joseph Pitts filed his Motion to Alter or
Amend Judgment. See ECF No. 31. Chief Judge J.
Michael Seabright, to whom this case is assigned, has
construed part of the motion as seeking his removal from this
case pursuant to 28 U.S.C. §§ 144 and/or 455.
See ECF No. 32. Acting Chief Judge Leslie E.
Kobayashi therefore assigned the present judge to examine the
disqualification issue. See ECF No. 33. Because Pitt
identifies no ground to remove Chief Judge Seabright from the
case, the motion is denied to the extent it seeks such
removal. Chief Judge Seabright will address the remainder of
the Motion to Alter or Amend Judgment.
is awaiting sentencing by a state court judge while housed at
the Halawa Correctional Facility, a State of Hawaii prison.
See ECF No. 1, PageID #s 2, 21. According to
www.vineline.com, there is only one Joseph Pitts in
custody in the State of Hawaii. The Joseph Pitts listed
online appears to be the party in this case, as the online
Pitts has the same prisoner ID number listed in the caption
above. In State v. Pitts, 131 Haw. 537, 539, 319
P.3d 456, 458 (2014), the Hawaii Supreme Court noted that
Pitts was tried and convicted of attempted murder in the
second degree, having stabbed a friend. The Hawaii Supreme
Court ruled on appeal that the trial court had erred in
failing to appoint substitute counsel for post-verdict
proceedings, including post-verdict motions and sentencing.
Accordingly, the case was remanded for appointment of counsel
“for the purposes of filing a motion for a new trial
and for resentencing”. Id. at 544, 319 P.3d at
November 16, 2015, Pitts filed the present action while
awaiting resentencing. See ECF No. 1. The Complaint
asserts that the Hawaii Department of Safety and various
prison officials violated the Eighth and Fourteenth
Amendments, as well as sections 707-711(A), 707-712(a), and
710-1063 of Hawaii Revised Statutes.
February 8, 2016, Chief Judge Seabright dismissed the
Complaint in part but allowed some of Pitts’s claims to
go forward. Specifically, Chief Judge Seabright’s order
noted that the Complaint adequately stated claims for
excessive force and common-law battery, as well as assault
and battery, with respect to Defendants Officer Russel
Botelho, Officer Taylor, Officer Gernler, Officer Keolanui,
Officer Magdadaro, Captain Aguon, and Lieutenant Kellie Kent.
However, Chief Judge Seabright dismissed with prejudice the
claims against Defendants Hawaii Department of Public Safety
Sheriffs and Internal Affairs Offices. Chief Judge Seabright
also granted leave to amend the Complaint with respect to
claims asserted against Defendants Nolan Espinda, Lyle
Antonio, Lieutenant Ho, Keoni Morreira, Officer J. Tabali,
Investigator Manumaleuna, Janice Villalobos, Ueda, Francis
Tuifau, and Val DeMello, RN. See ECF No. 18.
declaration, Pitts says that he “truly believe[s]
Honorable Judge Michael Seabright Has a personal dislike and
bias against [him] that [he] believe[s] will hinder and
prevent [him] from Receiving fair and just decisions.”
ECF No. 31-1, PageID # 345. Pitts provides no facts
supporting his belief that Chief Judge Seabright is biased
against him. At most, without pointing to specific examples,
Pitts complains about Chief Judge Seabright’s rulings,
saying that Chief Judge Seabright has been inconsistent, has
misstated Pitts’s claims, and has miscited the law.
Pitts also says, more than a little implausibly, that Chief
Judge Seabright appears to be engaging in ex parte
communications in the form of allegedly reading Pitts’s
outgoing mail. See ECF No. 31, PageID #s 326, 329.
Pitts says that Chief Judge Seabright has not taken
Pitts’s infirmity into account, but Pitts does not
explain what he means in alleging this. Id., PageID
does refer to one specific factual matter that he says Chief
Judge Seabright was mistaken about. Pitts says that, on page
26 of Chief Judge Seabright’s order of February 8,
2016, Chief Judge Seabright says that Pitts sought medical
attention for his shoulder on September 6, 2014, while
failing to mention the 13 other times Pitts says he sought
medical attention before that. See ECF No. 31,
PageID # 332. Even assuming that Chief Judge Seabright was
presented with a record indicating that Pitts sought medical
attention numerous times, the statement in the order does not
demonstrate bias. The order addressed Pitts’s
deliberate indifference claim, pointing to the September 2014
treatment as indicating that Pitts had received medical
attention for his shoulder, having had two injections into
it. See ECF No. 18, PageID # 235. Not reciting every
prior request for treatment is not, without more, evidence of
also believes that Chief Judge Seabright is biased against
him because of an earlier case Pitts filed in this court,
Pitts v. Rushing, et al., Civ. No. 11-00280 JMS/KSC.
In that case, Chief Judge Seabright actually denied a motion
to dismiss. See Civ. No. 11-00280 JMS/KSC, ECF No.
38. This ruling favored Pitts. Chief Judge Seabright
subsequently partially granted a motion for summary judgment
in that case. See Civ. No. 11-00280 JMS/KSC, ECF No.
78. Pitts says that, in granting the motion, Chief Judge
Seabright relied on a policy that had not been introduced by
any party. ECF No. 31, PageID # 327. Reliance on an
unidentified policy is not readily apparent from the order.
The order stated that Pitts could not proceed on a claim
based on the defendants’ failure to provide a written
statement explaining why certain witnesses had not been
called in a disciplinary hearing held by prison officials,
but that the defendants in that case were not entitled to
summary judgment on the issue of whether there were
justifiable reasons for not calling those witnesses.
See Civ. No. 11-00280 JMS/KSC, ECF No. 78. Pitts
cites to nothing in the earlier case indicating that in that
case he questioned Chief Judge Seabright’s partiality,
as he claims in the present motion to have done. See
ECF No. 31, PageID # 327. Ultimately, Pitts received a
monetary settlement in the earlier case. See ECF No.
has “as strong a duty to sit when there is no
legitimate reason to recuse as he does to recuse when the law
and facts require.” Clemens v. U.S. Dist. Court for
the Cent. Dist. Of Cal., 428 F.3d 1175, 1179
(9th Cir. 2005) (quoting Nichols v.
Alley, 71 F.3d 347, 351 (10th Cir. 1995)).
However, a judge’s recusal is sometimes required. This
court has deemed the motion to have been brought pursuant to
28 U.S.C. § 144 and/or § 455. See ECF No.
§ 144, a judge must recuse himself when a party to a
district court proceeding “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.” 28 U.S.C. §
§ 455(a), “[a]ny justice, judge, or magistrate
judge of the United States shall disqualify himself in any
proceeding in which his impartiality might reasonably be