UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
DR. BARRY EPPLEY, MD, DMD,
Entry Discussing Request for Recusal
The portion of the defendant’s letter of April 14, 2009, in which she sought either a
continuance of the hearing set for April 17, 2009, or the participation by telephone of her
associate, Mr. Bergeron, in her place during that hearing has been considered. Those
requests have been rejected.
The hearing set for April 17, 2009, remains set. The defendant continues to be
obligated to appear in person at the hearing, whether represented by counsel or not.
The defendant’s letter of April 14, 2009, can also be understood as seeking the
recusal of the undersigned. It will be referred to in this Entry as the recusal motion. There
is a general presumption that a court acts according to the law and not personal bias or
prejudice. Withrow v. Larkin, 421 U.S. 35, 47 (1975). The request for recusal, such as it is,
has been fully considered.
"Any justice, judge, or magistrate judge of the United States shall disqualify
himself in any proceeding in which his impartiality might reasonably be
1Two federal statutes, 28 U.S.C. §§ 144 and 455, govern recusal. See Hamm v. Bd. of
Regents, 708 F.2d 647, 651 (11th Cir. 1983). Section 144 relates only to charges of actual bias.
Henderson v. Dep't of Pub. Safety & Corr., 901 F.2d 1288, 1296 (5th Cir. 1990). Under § 455, a
judge must sua sponte recuse herself if she knows of facts that would undermine the appearance
of impartiality. Liteky v. United States, 510 U.S. 540, 547-48 (1994). There is in this case no
affidavit sufficient under § 144, nor could there be, because the pro se defendant is without the
means of satisfying the “certificate of counsel” requirement and is thus unable to seek
disqualification under § 144. See Robinson v. Gregory, 929 F. Supp. 334, 337 (S.D.Ind. 1996). Her
request for recusal is therefore treated as being made pursuant to 28