Mosby v. Hobbs et al

Filing 13

ORDER, Plaintiff's Motion and Amended Motion for Speedy Recusal 8 & 12 are denied. Signed by Magistrate Judge J. Thomas Ray on 12/11/2013. (kcs)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
ROGER D. MOSBY,
ADC #63018
V.

PLAINTIFF
5:13CV00328 BSM/JTR

RAY HOBBS, Director,
Arkansas Department of Correction; and
WILLIAM STRAUGHN, Warden,
Maximum Security Unit

DEFENDANTS

ORDER
Plaintiff, Roger D. Mosby, is a prisoner proceeding pro se in this § 1983 action.
He has recently filed a Motion, an Amended Motion, and a supporting Affidavit
arguing that I should recuse from this case. Docs. 8, 9, & 12.
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).
Plaintiff argues that I should recuse from this case because I did not promptly
rule on his: (1) November 5, 2013 Request for an Order for An Examination by an
Outside Doctor; (2) November 7, 2013 Motion for Appointment of Counsel; and (3)

November 18, 2013 Second Motion for Appointment of Counsel. I did not do so
because, at that time, I was waiting for Plaintiff to comply with my October 24, 2013
Order directing him to file an Amended Complaint. Doc. 3. The Amended Complaint
is needed to determine whether Plaintiff, who is a well established three striker, may
proceed in forma pauperis pursuant to the imminent danger exception in 28 U.S.C. §
1915(g). Plaintiff filed his Amended Complaint on November 25, 2013, and the Court
is in the process of reviewing that document, as well as the other Motions Plaintiff has
filed. Thus, I have not unnecessarily delayed in ruling on any matters in this case.
Plaintiff also alleges that I am biased against him because I entered unfavorable
rulings against him in Mosby v. Kelley, 5:11CV00301 SWW/JTR. Unfavorable rulings
in a 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." Am. Prairie Constr. Co., 594 F.3d at 1021-22; Denton, 434
F.3d at 1111. On appeal, the Eighth Circuit found that neither I, nor the District Judge
assigned to Mosby v. Kelley, 5:11CV00301 SWW/JTR, committed any reversible
errors. Further, I did not and do not have any antagonism against Plaintiff that would
prevent me from being fair and impartial in this case.

IT IS THEREFORE ORDERED THAT Plaintiff’s Motion and Amended
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Motion for Speedy Recusal (Docs. 8 & 12) are DENIED.
Dated this 11th day of December, 2013.

UNITED STATES MAGISTRATE JUDGE

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