Gaines v. Alabama Board of Pardons and Paroles et al (INMATE 2)

Filing 22

ORDER denying 19 Motion for Reconsideration, as further set out. Signed by Honorable Judge Truman M. Hobbs on 3/30/12. (scn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
HENRY GAINES, #113 380,
Plaintiff,
v.

ALABAMA BOARD OF PARDONS
AND PAROLES, et al.,
Defendants.

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) CIVIL ACTION NO.: 2:11-CV-749-TFM
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[WO]
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ORDER

Before the court is Plaintiff’s pleading filed in the captioned action styled Motion for
Consideration. In this pleading, Plaintiff states that he “seeks to bring to the Court’s
attention possible acts of judicial wrong-doing by the [undersigned] and his chosen
Magistrate Judge the Honorable T.F. Moorer.”

Plaintiff has filed his motion, considered a

motion for reconsideration of the court’s January 20, 2012 judgment, in the captioned matter
and, therefore, the undersigned shall address said filing.
Plaintiff complains that the court has gone out of its way to deny him fundamental
fairness, failed to comply with rules of procedure, misinterpreted state law, and singled him
out for “some sort of personal judicial denial or stonewalling.” Plaintiff further believes the
court has demonstrated preferential treatment towards Defendants by not serving his
complaint, has acted in the capacity of defense counsel for Defendants, and that the
undersigned was recruited by Magistrate Judge Moorer to deny Plaintiff his constitutional

rights of procedural process.1
Pursuant to 28 U.S.C. § 1915A, this court must screen prisoners’ civil complaints
against government officials or entities and dismiss the complaints if they are frivolous,
malicious, fail to state a claim upon which relief may be granted, or seek monetary relief
from a defendant who is immune from such relief. In pertinent part, § 1915A provides:
(a) Screening.--The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.
(b) Grounds for dismissal.-On review, the court shall identify cognizable
claims or dismiss the complaint, or any portion of the complaint, if the
complaint(1) is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or

1

The court notes Plaintiff’s repeated concern that the court improperly dismissed his complaint prior
to service after requiring him to pay an initial partial filing fee. Plaintiff is reminded, however, that the
court’s September 23, 2011 order clearly advised him that “notwithstanding payment of the initial partial
filing fee this court will dismiss this case prior to service of process if the court determines that the
action is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief in accordance with the provisions
of 28 U.S.C. § 1915(e)(2)(B)(i), (ii) and (iii).” (See Doc. No. 5.) Plaintiff’s reliance on Herrick v. Collins,
914 F.2d 228 (11th Cir. 1990), to support his assertion of improper dismissal is misplaced. The Herrick case
involved a situation where a district court sua sponte dismissed a civil rights complaint as frivolous after
requiring pro se prisoners plaintiffs to pay a partial filing fee. Id. at 229. The Herrick court found that the
district court should have determined whether the complaint was frivolous before it ordered the plaintiffs to
pay a partial filing fee and held that, under 28 U.S.C. § 1915(d), “when the district court has granted an in
forma pauperis motion and required payment of a partial filing fee, the court must issue the summons.” Id.
at 229-30. The district court was, therefore, directed to reinstate the plaintiff’s complaint and issue summons
on the defendants. Id. Since issuance of the decision in Herrick, however, 28 U.S.C. § 1915 has been
significantly altered. The current version of 28 U.S.C. § 1915, which became effective in 1996, allows a
court, as noted above, to dismiss a case “at any time” as frivolous, malicious, or for failure to state a claim,
“[n]otwithstanding any filing fee, or any portion thereof, that may have been paid.”

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(2) seeks monetary relief from a defendant who is immune from such relief.
28 U.S.C. § 1915A. The language of the statute does not distinguish between complaints
filed in forma pauperis and those in which the requisite filing fee has been paid. The
procedure required by § 1915A is by its terms a screening process, to be applied sua sponte
and as early as possible in the litigation. See 28 U.S.C. § 1915A. See also 28 U.S.C. §
1915(e)(2).
Review and disposition of the instant matter was made in accordance with the
statutory provisions applicable to inmate civil actions. Such review was conducted in an
objective manner in accordance with the law applicable to the specific allegations and
theories of liability asserted in the complaint. Accordingly, while Plaintiff’s dissatisfaction
with the court’s rulings may provide a proper ground for appeal, his mere disagreement with
the court's judicial rulings does not support his subjective allegations that the court acted
improperly or exhibited bias.
For the foregoing reasons, it is ORDERED that the motion for reconsideration of the
court’s January 20, 2012 judgment (Doc. No. 19) be DENIED.
To the extent Plaintiff’s March 15, 2012 pleading may be considered a motion for
recusal, see 28 U.S.C. § 144, it is
ORDERED that the motion (Doc. No. 19) is DENIED. See United States v. Meester,
762 F.2d 867, 884 (11 th Cir. 1985) (citations omitted) (a motion for disqualification under
§ 144 “must demonstrate that the alleged bias is personal as opposed to judicial in nature. .

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. The alleged bias must stem from an extrajudicial source and result in an opinion on the
merits on some basis other than what the judge learned from his participation in the case.
Thus, a motion for disqualification may not ordinarily be based on the judge's rulings in the
same case.”); Loranger v. Stierheim, 10 F.3d 776, 780, 781 (11 th Cir. 1994) (“as a general
rule, a judge’s rulings in the same case are not valid grounds for recusal.” Mere adverse
rulings do not constitute the sort of pervasive bias that necessitates recusal.).
Done this 30 th day of March, 2012.

/s/
Truman M. Hobbs
SENIOR UNITED STATES DISTRICT JUDGE

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