Waller v. Kelley et al

Filing 170

ORDER denying 168 Plaintiff's Motion to Disqualify Judge; denying 169 Plaintiff's Motion for Prohibition. Signed by Magistrate Judge J. Thomas Ray on 06/27/2013. (kcs)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION

KENNETH L. WALLER, JR.
ADC #103829
V.

PLAINTIFF

1:11CV00095 JLH/JTR

WENDY KELLEY, Deputy Director,
Arkansas Department of Correction, et al.

DEFENDANTS

ORDER
Plaintiff, Kenneth L. Waller, is a prisoner proceeding pro se in this § 1983
action. He has recently filed a Motion arguing that I should recuse because I have
entered unfavorably rulings against him in this lawsuit, as well as in Waller v. Taylor,
5:13CV00030 JLH/JTR. See Doc. #168. Plaintiff also has filed a "Motion for
Prohibition" asking that this case be stayed until he can file a judicial complaint
against me or file a petition for a writ of mandamus with the Eighth Circuit. See Doc.
#169.
A judge must "disqualify himself in any proceeding in which his impartiality
might reasonably be questioned." 28 U.S.C. § 455(a). Because a judge is presumed
to be impartial, the "party seeking disqualification bears the substantial burden of
proving otherwise." Am. Prairie Constr. Co. v. Hoich, 594 F.3d 1015, 1022 (8th Cir.
2010); U.S. v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006). Additionally, the Eighth

Circuit has clarified that a judge's rulings in the current or prior proceeding "do not
constitute a basis for a bias or partiality" unless the rulings "display a deep-seated
favoritism or antagonism that would make fair judgment impossible." Id.
Plaintiff has not made any such showing. Further, there is nothing that prevents
me from being fair, unbiased, and impartial in deciding Plaintiff's claims. All of my
previous rulings have been based on an impartial application of the law to the facts
presented in Plaintiff's cases. Finally, contrary to Plaintiff's unfounded allegations, I
have not had ex parte communications with anyone, nor have I unreasonably delayed
ruling on any matters.
IT IS THEREFORE ORDERED THAT Plaintiff's Motion to Disqualify (Doc.
#168) and Motion for Prohibition (Doc. #169) are DENIED.
Dated this 27th day of June, 2013.

UNITED STATES MAGISTRATE JUDGE

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