Prunty et al v. Desoto County School Board and District et al

Filing 63

OPINION AND ORDER striking 35 Motion to Certify Class and the motion is deemed stricken; granting 45 Motion to Strike Own Previously Filed Motion; denying 48 motion for recusal or disqualification; denying 50 Motion to Certify Class; denying 52 Motion to Vacate; denying 59 Motion for reconsideration; denying 38 Motion seeking Judicial Notice. Signed by Judge John E. Steele on 8/31/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ROBERT R. PRUNTY,
Plaintiff,
v.

Case No:

2:17-cv-291-FtM-99CM

AGENCY
FOR
HEALTHCARE
ADMINISTRATION,
AHCA,
ELIZABETH DUDEK, Director,
THE
JACK
NICKLAUS
MIAMI
CHILDREN’S HOSPITAL, JNMCH,
THE
SCHOOL
DISTRICT
OF
DESOTO COUNTY & BOARD OF
DIRECTORS, and ALEX SOTO, &
Board of Directors,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of the file, and
the various motions filed by the pro se plaintiff.

The motions

are resolved as set forth herein.
A. Class Certification
Plaintiff filed a Motion for Class Certification (Doc. #35)
on July 17, 2017, seeking an appointment of class counsel and
certification of a class of African-American parents of Desoto
County Public School District children who filled out IEP contracts
over the past 5 years.
Strike

Plaintiff’s

Own

Thereafter, plaintiff filed a Motion to
Previously

Filed

Motion

for

Class

Certification (Doc. #45) seeking to strike the motion for his own

failure to comply with Local Rule 3.01(g).

The motion to strike

will be granted, and the Motion for Class Certification (Doc. #35)
will be deemed stricken.
Plaintiff filed a new Motion Seeking Class Certification
(Doc. #50) and Brief in Support (Doc. #51) on July 28, 2017, this
time seeking to certify a class to be represented by “assigned
Counsel” while plaintiff can “adequately represent himself”.

It

is well established that a pro se plaintiff may plead his or her
own personal case, but cannot litigate on behalf of others.

See

Bass v. Benton, 408 F. App'x 298, 298–99 (11th Cir. 2011); Timson
v. Sampson, 518 F.3d 870, 873 (11th Cir. 2008) (citing 28 U.S.C.
§ 1654).

This necessarily extends to a pro se plaintiff’s ability

to act as an adequate class representative.

See, e.g., Young v.

Scott, No. 2:16-CV-581-FTM-99CM, 2016 WL 4441581, at *3 (M.D. Fla.
Aug. 23, 2016) (collecting cases); Bullock v. Strickland, No. 2:15CV-638-MHT, 2017 WL 1029111, at *1 (M.D. Ala. Mar. 16, 2017)
(collecting

cases).

Therefore,

the

request

for

class

certification must be denied.
B. Disqualification
Liberally construed, plaintiff’s “Motion and Sworn Affidavit
Made Pursuant to 28 U.S.C. 144 et seq., 28 USC 455(a) & (b) Due to
Actual Bias or Prejudice, With the Court’s Impartiality Being
Reasonably Questioned Concerning “Bent of Mind” for the Agency for
Health

Care

Administration,

(AHCA),

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Based

Upon

the

Deeply

Entrenched

and

Longtime

Financial

Interests

of

United

States

District Judge John E. Steele Financial Interests with Medicaid
Business Partners and Allies, Which Create an Obvious Appearance
of Impropriety and Partiality” (Doc. #48) seeks to disqualify the
undersigned based on a financial interest in companies that invest
directly or indirectly in Medicaid or Medicare, and based on the
appearance of impropriety because the undersigned presided over a
previous related case.

Defendants filed Responses.

(Docs. ##

53-55.)
1. Bias or prejudice
Plaintiff’s request to disqualify is based on 28 U.S.C. §
144, which provides that a party may file a “timely and sufficient
affidavit”

that

the

presiding

prejudice requiring reassignment.

judge

has

a

personal

bias

or

The statute sets forth specific

requirements for the affidavit:
The affidavit shall state the facts and the
reasons for the belief that bias or prejudice
exists, and shall be filed not less than ten
days before the beginning of the term at which
the proceeding is to be heard, or good cause
shall be shown for failure to file it within
such time. A party may file only one such
affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating
that it is made in good faith.
28 U.S.C. § 144.

Therefore, after an affidavit is filed, the

Court must determine whether it was timely filed, accompanied by
a certificate of counsel of record, and sufficient in statutory

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terms as set forth in § 144.

Parrish v. Bd. of Comm'rs of Alabama

State Bar, 524 F.2d 98, 100 (5th Cir. 1975) 1.

The Court finds

that the affidavit fails on all three requirements.
A previous case was originally dismissed without prejudice on
February 1, 2017, and reconsideration was denied on March 29, 2017.
See 2:16-cv-577-FTM-29CM,

Docs.

initiated

2017,

on

May

30,

##

106,

123.

This

however

the

motion

disqualification was not filed until July 27, 2017.
the

motion

is

untimely.

Further,

even

though

case

was

seeking

Therefore,

plaintiff

is

unrepresented, the certificate of counsel of record is mandatory
and the absence of the necessary certificate is fatal.

See Everson

v. Liberty Mut. Assur. Co., No. CIVA 105-CV-2459-RWS, 2008 WL
1766956, at *2 (N.D. Ga. Apr. 14, 2008) (noting cases where the
absence of a certificate proved fatal).
Generally,

“[t]he

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.”

United States v. Meester, 762 F.2d 867, 884 (11th

Cir. 1985) (citation omitted).

It must also be focused on the

party, and a judge’s comments on the lack of evidence, or adverse

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc) the Eleventh Circuit adopted as binding
precedent all the decisions of the former Fifth Circuit handed
down prior to the close of business on September 30, 1981.

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rulings do not constitute bias.

Hamm v. Members of Bd. of Regents

of State of Fla., 708 F.2d 647, 651 (11th Cir. 1983).

Judicial

rulings alone are almost never a valid basis for finding bias, and
“opinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis. . . .”
United States, 510 U.S. 540, 555 (1994).

Liteky v.

It is “normal and proper”

for a judge to preside over successive cases that may involve the
same party.

Id. at 551.

A review of the affidavit reflects a

reliance on past rulings in other cases, and is insufficient to
support

a

finding

disqualification

is

of

bias

clearly

under

§

untimely,

144.
it

certificate of counsel, and is insufficient.

The
lacks

request
the

for

necessary

The motion will be

denied under § 144.
2. Financial interest
Although § 144 is essentially unavailable, a pro se plaintiff
can request recusal pursuant to 28 U.S.C. § 455.

Under § 455,

(a) Any justice, judge, or magistrate judge of
the United States shall disqualify himself in
any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the
following circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed evidentiary facts concerning the
proceeding;
. . .

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(4) He knows that he, individually or as a
fiduciary, or his spouse or minor child
residing in his household, has a financial
interest in the subject matter in controversy
or in a party to the proceeding, or any other
interest that could be substantially affected
by the outcome of the proceeding;
. . . .
28 U.S.C. § 455.

“The inquiry of whether a judge’s impartiality

might reasonably be questioned under § 455(a) is an objective
standard

designed

to

promote

the

public’s

confidence

in

the

impartiality and integrity of the judicial process. [ ] Thus, the
court looks to the perspective of a reasonable observer who is
informed of all the surrounding facts and circumstances.”

In re

Evergreen

2009)

Sec.,

Ltd.,

570

F.3d

1257,

1263

(11th

Cir.

(internal citations omitted) (emphasis in original).
rulings are rarely grounds for recusal.

Adverse

In re Walker, 532 F.3d

1304, 1311 (11th Cir. 2008) (citing Liteky, 510 U.S. at 554).

It

is a “reasonable man standard” that is applied to determine whether
recusal is appropriate.

Whitehurst v. Wright, 592 F.2d 834, 838

(5th Cir. 1979) (citations omitted).

The Court finds that a

reasonable person would not question the undersigned’s partiality
under the circumstances of this case.

The motion will be denied

on this basis.
Plaintiff asserts that a financial interest in non-party
Baptist HealthCare Systems and non-party Viasys HealthCare, Inc.,
who collect revenues from either Medicaid or Medicare just like

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defendants, equates to a financial interest that requires recusal.
However, a “financial interest” does not include ownership in a
mutual or common investment fund, or a propriety interest in a
mutual insurance company or other similar interest under 28 U.S.C.
§ 455(d)(4).

The motion will also be denied on this basis.

C. Reconsideration
Also

before

the

Court

are

related

motions

seeking

reconsideration: (1) “Motion Pursuant to Fed. R. of Civ. P. Rule
60(b)(4) Seeking to Vacate All Orders and Judgments of Federal
District Court Judge John E. Steele. . . .” (Doc. #52); and (2)
“Motion filed Pursuant to Fed. R. of Civ. P. Rule 60(b)(3) and
Fed. R. of Civ. P. Rule 26(g), Due to Intentional Fraud Upon the
Court By Officers of the Court” (Doc. #59).

Responses and a

Joinder in Response were filed by defendants.

(Docs. ## 56-58,

60-62.)
In the first motion, plaintiff seeks to have the undersigned’s
orders in this case, and past closed cases, as null and void based
on a financial interest in Viasys HealthCare and Baptist HealthCare
Systems.

The Court need not address its authority to vacate orders

in closed cases because the Court finds no financial interest
requiring recusal as discussed above, and as defined by § 455.
In the second motion, plaintiff alleges fraud by counsel for
defendants because they “constantly claimed” that plaintiff must
exhaust his administrative remedies first even though it is not

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required for an action under 42 U.S.C. § 1983.

Plaintiff further

alleges that the Court has supported the fraud by ruling that
plaintiff failed to exhaust his administrative remedies.

The

Court has made no rulings with regard to the pending motions to
dismiss, nor any determination with regard to whether exhaustion
applies or whether plaintiff has exhausted in this case.
motion will therefore be denied.

The

Plaintiff further repeats his

call for recusal, which will be denied for the reasons previously
stated.

Both motions are denied in their entirety.

D. Judicial Notice
Plaintiff
Adjudicative

filed

and

a

Motion

Legislative

Seeking

Facts

(Doc.

Judicial
#38) 2 of

Notice
22

of

items

consolidated as follows: the standard I.E.P. contracts used by the
School District of Desoto County, a section of the Code of Federal
Regulations, the ongoing and possibly improper use of billing for
services, a Florida law and Florida Department of Education law or
rule including plaintiff’s interpretation of their significance,
a statute of limitations exists

but only applies to children,

that plaintiff “as a matter of fact and law, has already utilized
the State of Florida Administrative Procedures”, that plaintiff is
making

a

facial

constitutional

challenge,

2

that

former

Desoto

Defendants Jack Nicklaus/Miami Children’s Hospital and Alex
Soto filed a Response (Doc. #46), and defendant School District of
Desoto County filed a Joinder (Doc. #58) in the response.

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County School Superintendent is alleged to have stolen over $10
million from the Desoto County School District in 2016, that Chef
Mr. Shevaun Harris wrote plaintiff a letter that his children had
been approved for ABA services, and then testified in a hearing
falsely that assessments had occurred, that further letters were
sent containing falsehoods that services were approved, that one
of plaintiff’s children was discharged from Jack Nicklaus Miami
Children’s

Hospital

before

he

was

stabilized,

that

Congress

enacted a law in 1986 that mandated that patients could not be
denied emergency medical care, that the United States Department
of Education restated the importance of a section of the Code of
Federal Regulations in 2013, that a federal statute contains
criminal penalties, that a federal judge’s denial of a stay meant
that the Agency for Health Care Administration (AHCA) would be
required to pay for certain services for Florida residents, that
the AHCA supplied plaintiff with a list of ABA service providers
who told plaintiff that AHCA did not pay or paid slowly, that the
School

District

recommendations

of

Desoto

that

were

County
then

not

was

presented

applied,

that

with

doctor

the

School

District has conducted unilateral and unlawful evaluations of
plaintiff’s children, and that the Florida Department of Education
notified the school district of its noncompliance.
Plaintiff seeks to have the Court take judicial notice of all
of these items pursuant to Fed. R. Evid. 201 as adjudicative facts

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not subject to reasonable dispute because they “can be accurately
and

readily

reasonably

be

determined

from

questioned.”

sources
Fed.

R.

whose
Evid.

accuracy

cannot

201(b)(2).

After

review, the Court finds that the listed items are irrelevant to
the issues at hand, include legislative facts that are specifically
excluded from the Rule under subsection (a), reference facts that
are subject to dispute, include plaintiff’s opinion or version of
facts, and/or the request is premature.

The motion will be denied.

Accordingly, it is hereby
ORDERED:
1. Plaintiff’s Motion to Strike Plaintiff’s Own Previously
Filed Motion for Class Certification (Doc. #45) is granted
and the Motion for Class Certification is deemed stricken.
2. Plaintiff’s Motion for Class Certification (Doc. #35) is
stricken and will not be considered.
3. Plaintiff’s Motion Seeking Class Certification (Doc. #50)
is denied.
4. Plaintiff’s Motion (Doc. #48) seeking disqualification or
recusal is denied.
5. Plaintiff’s “Motion Pursuant to Fed. R. of Civ. P. Rule
60(b)(4) Seeking to Vacate All Orders and Judgments of
Federal District Court Judge John E. Steele. . . .” (Doc.
#52) is denied.

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6. Plaintiff’s “Motion filed Pursuant to Fed. R. of Civ. P.
Rule 60(b)(3) and Fed. R. of Civ. P. Rule 26(g), Due to
Intentional Fraud Upon the Court By Officers of the Court”
(Doc. #59) is denied.
7. Plaintiff’s Motion Seeking Judicial Notice of Adjudicative
and Legislative Facts (Doc. #38) is denied.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2017.

Copies:
Plaintiff
Counsel of Record

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31st

day