Johnson v. McCurdy et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARYLIN MONAE PORTER, 	)
a/k/a, LAMONE M. JOHNSON, 	)
)
Plaintiff, 	)
)
v. 	) 	No. CIV-22-23-R
)
JOEL MCCURDY, et. al., 	)
)
Defendants. 	)
ORDER
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging violations of her
constitutional rights. Pursuant to 28 U.S.C. § 636(b)(1)(B), the matter was referred to
United States Magistrate Judge Gary Purcell for review. On September 20, 2022, Judge
Purcell issued a Supplemental Report and Recommendation (Doc. No. 70) recommending
that Defendant Joel McCurdy’s Motion to Dismiss (Doc. No. 38) be granted. The matter is
currently 	before 	the 	Court 	on 	Petitioner’s 	timely 	objection 	to 	the 	Report 	and
Recommendation as well as her Motion to Recuse Magistrate Judge Purcell (Doc. No. 75),
and her “Motion for Just, Speedy, and Inexpensive Determination” (Doc. No. 80). Upon
consideration of the filings, the Court finds as follows.
Plaintiff filed this action in the Eastern District of Oklahoma on October 18, 2021,
which transferred the action to this Court. On May 27, 2022, Defendant McCurdy filed a
Motion to Dismiss based on Plaintiff’s original complaint (Doc. No. 1). Before taking up
McCurdy’s Motion, the undersigned granted Defendant Utilization Review Committee’s
Motion to Dismiss on August 31, 2022. In that Order, Plaintiff was granted leave to amend
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her complaint within twenty-one days. (see Doc. No. 63, at 3). On September 20, 2022—
before 	Plaintiff’s 	deadline 	to 	amend 	expired—Judge 	Purcell 	recommended 	that
Defendant’s Motion to Dismiss be granted.1 Unbeknownst to Judge Purcell, however, the
Court Clerk’s office had received Plaintiff’s timely-filed Amended Complaint (Doc. No.
72) the day before. This Amended Complaint, which was filed with leave of Court, became
the operable pleading and, therefore, superseded the original complaint. See Davis v. TXO
Prod. Corp., 929 F.2d 1515, 1517 (10th Cir. 1991).
As a result, Defendant McCurdy’s Motion to Dismiss (Doc. No. 38) was rendered
MOOT by the filing of the Amended Complaint. Because both Defendant McCurdy’s
Motion to Dismiss and Judge Purcell’s Supplemental Report and Recommendation are
based on pleadings that are no longer operable, the undersigned DECLINES to adopt the
Supplemental Report and Recommendation (Doc. No. 70) and re-refers the matter to Judge
Purcell for further proceedings. Motions previously denied or deemed moot may require
the attention of the Magistrate Judge.
As to Plaintiff’s Motion to Recuse Magistrate Judge Purcell, disagreements with
judicial rulings alone “almost never constitute a valid basis for a bias or partiality motion.”
Liteky v. United States, 510 U.S. 540, 555 (1994) (citing United States v. Grinnell Corp.,
384 U.S. 563, 583 (1966)); see also Green v. Branson, 108 F.3d 1296, 1305 (10th Cir.
1997) 	(“[A]dverse 	rulings 	cannot 	in 	themselves 	form 	the 	appropriate 	grounds 	for
1 Despite Judge Purcell’s finding that Plaintiff did not timely respond to McCurdy’s Motion
to Dismiss (see Doc. No. 70, at 2), the undersigned finds that Plaintiff timely responded on
July 5, 2022, after being granted an extension of time. (see Doc. Nos. 43, 47).
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disqualification.” (internal quotation marks and citation omitted)). Although judges must
recuse themselves when their impartiality could reasonably be questioned, they also must
not recuse themselves when circumstances do not require it. See Herrera v. Herbert, No.
4:19-CV-46 DN, 2022 WL 2982457, at *2 (D. Utah July 28, 2022) (citing In re Drexel
Burnham Lambert, Inc., 861 F.2d 1307, 1312-13 (2d Cir. 1988)).
Here, the Court finds that Plaintiff’s Motion to Recuse—in which she questions
whether Judge Purcell is “biased,” or “prejudicial”—is based solely on rulings adverse to
her case. These rulings cannot form the basis for questioning Judge Purcell’s impartiality.
Accordingly, Plaintiff’s Motion to Recuse (Doc. No. 75) is DENIED.
As to Plaintiff’s “Motion for Just, Speedy, and Inexpensive Determination,” the
Court has various matters on its docket and is aware of its obligations to litigants. Because
this case continues to move forward toward resolution, Plaintiff’s Motion (Doc. No. 80) is
DENIED.
Pursuant to Plaintiff’s request (see Doc. No. 80, at 11), the Court Clerk is ordered
to mail Plaintiff a copy of the docket sheet for this case, Plaintiff’s Amended Complaint
(Doc. No. 72), and the “Summons Returned Executed” served on the Utilization Review
Committee (Doc. No. 19) and Defendant Joel McCurdy (Doc. No. 33).
IT IS SO ORDERED this 11 th day of January 2023.
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