SMITH v. PERRY et al

Filing 91

ORDER denying 77 Motion for Recusal. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 9/15/2022. (chc)

Case 5:22-cv-00044-TES-TQL Document 91 Filed 09/15/22 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
LESTER J. SMITH, JR.,
Plaintiff,
CIVIL ACTION NO.
5:22-cv-00044-TES-TQL

v.
Warden CLINTON PERRY, et al.,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR RECUSAL
______________________________________________________________________________
Plaintiff Lester J. Smith, Jr., a prisoner who is presently incarcerated at Macon
State Prison in Oglethorpe, Georgia, has filed a motion seeking recusal of the
undersigned in this case. [Doc. 77]. For the following reasons, the Court DENIES
Plaintiff’s recusal motion [Id.].
Plaintiff primarily argues that he “will not receive fair, and just proceedings with
Judge Self presiding over this case,” because undersigned has demonstrated bias and
prejudice towards Plaintiff. [Doc. 77, p. 1]. He also argues that the undersigned has
“turned a blind eye” to the physical harm—“possibly death”—that plaintiff faced from
Defendants in this case. [Id.]. Finally, Plaintiff states that the undersigned could have
cited Federal Rule of Civil Procedure 8 instead of Rule 7 to accept Plaintiff's “critical
filings of a [sic] urgent, and exigent circumstances.” [Id.].

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Plaintiff attached a letter to his motion in which he seeks assistance from the
SCHR (assumingly the Southern Center for Human Rights) as well as the United States
Department of Justice. [Doc. 77-1]. In the letter, Plaintiff again alleges that the
undersigned has “turn[ed] a blind eye” or “ignored” evidence of violence, murders, and
“rogue prison officials” presented in various documents Plaintiff has provided to the
Court. [Id. at 1]. He specifically references the Court’s May 10, 2022 Order [Doc. 56]
adopting the United States Magistrate Judge’s Report and Recommendation and
denying a variety of motions filed by Defendant. 1 [Doc. 77-1, p. 1]. He then makes more
generalized arguments that federal and state courts should join with the Georgia
Department of Corrections to curb violence within prisons, stating “[t]he Eleventh
Circuit as a whole needs new, and competent justices that are in accord to all other
circuits.” [Id. at 2].
Plaintiff’s primary complaint seems to be that he believes the undersigned is
biased and prejudiced towards him and apparently relies on 28 U.S.C. § 455 subsection
(a) or subsection (b)(1). [See Doc. 77, p. 1 (citing “the recuse statute”)]. That statute
generally provides that a judge “shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The statute also

Besides denying a variety of motions Defendant filed, the Court stated: “To the extent that Plaintiff asks
for blank subpoena forms, his Motion is GRANTED.” [Doc. 56, p. 8]. The Order also stated: “[T]he Court
GRANTS Plaintiff limited leave to file an amended complaint that complies with the Federal Rules of
Civil Procedure,” with additional instructions. [Doc. 56, p. 32].

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enumerates certain other circumstances requiring a judge to disqualify himself. 28
U.S.C. § 455(b)(1)–(5).
The standard under subsection (a) is objective and requires the Court to ask
“whether an objective, disinterested, lay observer fully informed of the facts underlying
the grounds on which recusal was sought would entertain significant doubt about the
judge’s impartiality.” U.S. v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003) (internal
quotation marks omitted) (quoting Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th
Cir.1988)). In the Eleventh Circuit, “it is well settled that the allegation of bias must
show that the bias is personal as distinguished from judicial in nature.” Bolin v. Story,
225 F.3d 1234, 1239 (11th Cir. 2000) (internal quotation marks and citation omitted) (per
curiam). As a result, “a judge’s rulings in the same or a related case are not a sufficient
basis for recusal,” except in rare circumstances where the previous proceedings
demonstrate pervasive bias and prejudice. Id.; see also Liteky v. U.S., 510 U.S. 540, 555
(1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or
partiality recusal motion.”); McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.
1990) (“[The bias] must derive from something other than that which the judge learned
by participating in the case.”). In this case, Plaintiff has not pointed to any specific facts
showing that any sort of extrajudicial bias existed, nor has Plaintiff demonstrated that
the Court’s rulings exhibit “such a high degree of . . . antagonism as to make fair
judgment impossible” or that any judge involved in his case in this district have a bias

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toward Plaintiff “so extreme as to display clear inability to render fair judgment.” See
Liteky, 510 U.S. at 551, 555. It is clear that “[r]epeated rulings against a litigant, no matter
how erroneous and how vigorously and consistently expressed, are not a basis for
disqualification of a judge on the grounds of bias and prejudice.” See Maret v. U.S., 332
F. Supp. 324, 326 (E.D. Mo. 1971). Plaintiff’s contention that the undersigned has
demonstrated bias and prejudice towards him is simply incorrect.
The standard under 28 U.S.C. § 455(b)(1) requires disqualification where the
judge “has a personal bias or prejudice concerning a party, or personal knowledge of
disputed evidentiary facts concerning the proceeding[.]” “Recusal under this subsection
is mandatory, because ‘the potential for conflicts of interest are readily apparent.’” Patti,
337 F.3d at 1321 (quoting Murray v. Scott, 253 F.3d 1308, 1312 (11th Cir. 2001)). Again,
Plaintiff has failed to establish any personal or pervasive bias on the part of the
undersigned, and Plaintiff also fails to identify any specific “disputed evidentiary facts”
of which the Court might have knowledge. Any knowledge gained through the course
of a judicial proceeding is not a “disputed evidentiary fact” that requires recusal. U.S. v.
Bailey, 175 F.3d 966, 969 (11th Cir. 1999) (per curiam). Instead, knowledge of disputed
evidentiary facts must be gained through an extrajudicial source to warrant recusal. See
id. Plaintiff has not asserted that such knowledge exists here.
In sum, Plaintiff’s contentions that the undersigned has not ruled in his favor are
not alone sufficient to merit recusal, and Plaintiff has also failed to show that the Court

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harbors the type of pervasive bias or prejudice against Plaintiff that would otherwise
require recusal. Thus, the Court DENIES Plaintiff’s motion for recusal. [Doc. 77].
SO ORDERED, this 15th day of September, 2022.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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