KATHRYN VRATIL, District Judge
James L. Bolden brings suit against the City of Topeka, Mayor Harry Felker, Jay Oyler, Mike McGee, Kevin Rooney, Meg Perry and Jeff White, alleging that they violated 42 U.S.C. § 1981, 1982, 1983 and 1985 and the Fair Housing Act, 42 U.S.C. § 3604. On December 2, 2003, Magistrate Judge James P. O'Hara recommended that the Court dismiss plaintiff's second amended complaint, without prejudice, as to individual defendants Felker, Oyler, McGee, Rooney, Perry and White. Report And Recommendation (Doc. #67). This matter comes before the Court on plaintiff's Objection To Magistrate's Report And Recommendation (Doc. #69) filed December 11, 2003. For reasons stated below, the Court overrules plaintiff's objection, and approves and adopts Judge O'Hara's recommendation. Accordingly, the Court dismisses plaintiff's second amended complaint, without prejudice, as to Felker, Oyler, McGee, Rooney, Perry and White.
Background
The pertinent factual background is as follows.
On December 20, 2002, pkintir [b]rought suit against the City of Topeka ("the City"), Felker, Oyler and McGee, and a filed a motion for a temporary restraining order to prevent the demolition of two of his properties. See Complaint For Emergency Temporary Restraining Order And Preliminary Injunctive Relief (Doc. #1) and Request For Emergency Restraining Order Hearing (Doc. #2). On December 23, 2002, the Court denied plaintiff's motion, dismissed his complaint for lack of jurisdiction and granted him leave to amend his complaint. See Doc. #3. In plaintiff's amended complaint, which he filed on April 29, 2003, plaintiff added individual defendants Rooney, Perry and White, and McPherson Construction and the United States Department of Housing and Urban Development. See Amended Complaint For Declaratory And Injunctive Relief (Doc. #13). On May 23, 2003, the City filed its motion to dismiss. See Defendant City Of Topeka's Motion To Dismiss (Doc. #17).
Plaintiff did not ask the Clerk's Office to issue summonses in relation to either his complaint or amended complaint. On May 27, 2003, the City filed its answer to plaintiff's amended complaint. See Doc. #19. On August 15, 2003, plaintiff filed a second amended complaint which deleted McPherson Construction and the United States Department of Housing and Urban Development as defendants. See Doc #35.
On November 20, 2003, Judge O'Hara conducted the final pretrial conference. Plaintiff and the City submitted a proposed pretrial order in which the City pointed out that the Court might not have jurisdiction over the individual defendants because plaintiff had never served them. That same day, plaintiff asked the Clerk's Office to issue summonses for those defendants. On December 2, 2003, Judge O'Hara filed his report and recommendation, recommending that the Court dismiss plaintiff's second amended complaint without prejudice as to the individual defendants because plaintiff had not timely served them, requested an extension of time to serve them, or shown good cause for failure to serve them. Doc. #67, at 12. On December 11, 2003, plaintiff filed his objection to Judge O'Hara's report and recommendation, arguing among other things, that the report and recommendation was "a written manifestation of the magistrate's continuing bias." Doc. #69 at 1.
During the pretrial conference, plaintiff's counsel admitted that until the City attorney raised the issue in the proposed pretrial order, he did not know that it was necessary to serve the individual defendants — much less serve them within the time limits set forth in Rule 4, Fed.R.Civ.P. See Report And Recommendation at 4.
Analysis
The standard for district court review of a magistrate judge's report and recommendation is contained in 28 U.S.C. § 636, which provides as follows:
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
28 U.S.C. § 363(b)(1)(C). As stated in the Code, the Court must make a de novo determination regarding the portions of the report and recommendation to which objections have been filed.
Id.
The Court has considered plaintiff's objections to Judge O'Hara's report and carefully reviewed the report and recommendation. Although plaintiff asks the Court to reject Judge O'Hara's report and recommendation because of bias, he offers no evidence in support of that request.
Plaintiff specifically argues that Judge O'Hara's report and recommendation is a written manifestation of continuing bias toward plaintiff Objection To Magistrate's Report And Recommendation at 1. Plaintiff claims that Judge O'Hara has "consistently dismissed material information on the law and facts relevant to this case,. . . has become embroiled in the controversy and . . . has demonstrated a disrespect for the plaintiff's counsel that would lead a rational disinterested observer to conclude Mr. Bolden is not getting a fair hearing before him." Id. at 2.
Although plaintiff asks the Court to reject Judge O'Hara's report and recommendation, he does not seek to disqualify Judge O'Hara under 28 U.S.C. § 144 or 28 U.S.C. § 455. Under 28 U.S.C. § 144, a litigant must file a timely and sufficient affidavit which establishes that the judge has a personal bias or prejudice. Green v. Branson, 108 F.3d 1296, 1305 (10th Cir. 1997). Similarly, to obtain disqualification under 28 U.S.C. § 455, a movant must show that "a reasonable person, knowing all the circumstances, would harbor doubts about the judge's impartiality." Id. Even if plaintiff sought recusal or disqualification under these statutes, his naked suggestion that Judge O'Hara is biased is wholly insufficient to meet these legal standards. Plaintiff offers no evidence of bias, and he shows no reasonable basis to doubt Judge O'Hara's impartiality. Plaintiff's unsworn allegation of bias does not raise a genuine issue of bias.
Even if plaintiff evidenced that Judge O'Hara had displayed bias in his rulings or during the final pretrial conference, the Supreme Court has held that "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), and that "[a] judge's ordinary efforts at courtroom administration-even a stern and short-tempered judge's ordinary efforts at courtroom administration" remain immune from charges of bias.Id. at 556.
On this record, plaintiff's suggestion that Judge O'Hara is biased does not provide a sufficient basis for rejecting his report and recommendation. Although Judge O'Hara has expressed well-taken concern about the quality of plaintiff's representation, his report and recommendation does not reveal bias. Instead, it correctly applies the Federal Rules of Civil Procedures.
The report and recommendation correctly finds that plaintiff did not timely serve the individual defendants, seek an extension of time for service, or show good cause for failure to obtain service. Plaintiff's objections are without merit. The Court therefore overrules plaintiff's objections, and approves and adopts Judge O'Hara's report and recommendation.
IT IS THEREFORE ORDERED that plaintiff's Objection To Magistrate's Report And Recommendation (Doc. #69) filed December 11, 2003 be and hereby is OVERRULED. The Court approves and adopts Judge O'Hara's Report And Recommendation (Doc. #67) filed December 2, 2003, and dismisses without prejudice plaintiff's second amended complaint as to Harry Felker, Jay Oyler, Mike McGee, Kevin Rooney, Meg Perry and Jeff White.