Redford v. Duffey et al

Filing 23

OPINION AND ORDER denying Plaintiff's Motion to Vacate Three Strikes Provision 17 , Rule 60 Motion to Correct Judgment 19 , Petition for Administrative Remedy 21 , and Application to Appeal In Forma Pauperis 22 and denying as moot Plaintiff's Motion for Clerk to Transmit Notice of Appeal 18 . Signed by Judge William S. Duffey, Jr on 10/3/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MIKE REDFORD,
Plaintiff,
v.

1:17-cv-580-WSD

JUDGE WILLIAM DUFFEY, JR.,
and MAGISTRATE JANET KING
Defendants.

OPINION AND ORDER
This matter is before the Court on Plaintiff Mike Redford’s (“Plaintiff”)
Motion to Vacate Three Strikes Provision [17], Motion for Clerk to Transmit
Notice of Appeal [18], Rule 60 Motion to Correct Judgment [19], Petition for
Administrative Remedy [21], and Application to Appeal In Forma Pauperis (“IFP
Application”) [22].
I.

BACKGROUND
On February 15, 2017, Plaintiff, pro se, filed a Complaint [1] against the

Honorable William S. Duffey, Jr. and the Honorable Janet F. King, both of whom
are judges on this Court. Plaintiff used a habeas petition form to allege that the
judges “unconstitutionally acted under color of federal law” and violated “federal

protected rights” in connection with prior civil actions Plaintiff filed in this Court.
([1] at 4, 6). Plaintiff sought to have the judges “banned . . . perpetually from
adjudicating [Plaintiff’s] cases in this court” and prosecuted. (Id. at 9). Plaintiff
did not pay the filing fee for a civil action.
On March 7, 2017, Magistrate Judge King found that Plaintiff’s Complaint
sought relief only under the civil rights laws and thus directed the Clerk to convert
the initially styled habeas action to a civil rights action. ([2] at 2-3). In the same
order, Magistrate Judge King recused herself because the Complaint named her a
Defendant in the action. (Id.). On March 8, 2017, Magistrate Judge Linda T.
Walker issued her Final Report and Recommendation [3] (“Final R&R”),
recommending dismissal of the case under 28 U.S.C. § 1915(g), which bars a
prisoner from filing a civil action without paying the filing fee if he previously
filed, while incarcerated, at least three cases that were dismissed as frivolous,
malicious, or for failure to state a viable claim. On June 8, 2017, the Court adopted
the Final R&R and dismissed the case without prejudice. ([11] (“June 8th Order”).
On June 7, 2017, Plaintiff filed a Motion to Vacate Three Strikes Provision.
On June 8, 2017, Plaintiff filed his Notice of Appeal [13]. On July 17, 2017,
Plaintiff filed his Motion for Clerk to Transmit Notice of Appeal and his Rule 60
Motion to Correct Judgment. On July 24, 2017, the Eleventh Circuit Clerk of
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Court entered dismissal pursuant to 11th Cir. R. 42-1(b) for want of prosecution
“because the appellant Mike Redford [] failed to pay the filing and docketing fees
to the district court within the time fixed by the rules, July 24, 2017.” ([20] at 2).
On September 5, 2017, Plaintiff filed his Petition for Administrative Remedy.
Finally, on September 13, 2017, Plaintiff filed an Application to Appeal In Forma
Pauperis.
II.

DISCUSSION
A.

Plaintiff’s Motions Seeking Relief from Judgment

Plaintiff seeks to have the Court set aside its June 8th Order dismissing the
action without prejudice because Plaintiff failed to pay the proper filing fees. In
his Motion to Vacate Three Strikes Provision, Plaintiff argues that Magistrate
Judge King improperly converted his habeas action to a civil rights action, that
Plaintiff met his burden to pay the required filing fees as evidenced by his $5 filing
fee payment required to proceed in a habeas action,1 that a frivolity review of the
1

Plaintiff’s Rule 60 Motion to Correct Judgment and Petition for
Administrative Remedy essentially seek the same relief—each ask the Court to
find that Plaintiff’s payment of a $5 filing fee as required in a habeas action
satisfies any further burden Plaintiff had to pay additional filing fees once the
action was converted to a civil rights action. For the same reasons that the Court
provides in denying Plaintiff’s similar request in his Motion to Vacate Three
Strikes Provision, the Court denies Plaintiff’s Rule 60 Motion to Correct Judgment
and Petition for Administrative Remedy. Plaintiff cannot now argue the Court’s
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action was unwarranted because he was not proceeding in forma pauperis, and that
Judge Duffey should have recused himself from the action. ([17] at 2-5).
Magistrate Judge King’s decision to convert the case to a civil rights action
was considered by the Court when it issued its June 8th Order. The Court noted
that to the extent Plaintiff objected to Magistrate Judge King’s conclusion to
convert the matter to a civil rights action, his objection was overruled because
Judge King’s Order [2] was not “clearly erroneous or contrary to law.” ([11] at 6
n.4). The Court also held that “[e]ven if Plaintiff’s Complaint could properly be
construed as a petition for a writ of habeas corpus under 28 U.S.C. § 2254—which
it [could not]—Plaintiff’s allegations [were] conclusory, frivolous, and insufficient
to warrant habeas relief.” (Id.). Plaintiff’s request to have this Court consider its
decision for a second time is unavailing. Magistrate Judge King did not commit
plain error when she decided to convert the case. Plaintiff’s argument here most
certainly fails to satisfy any standard required in a motion for reconsideration.
Motions for reconsideration “should be reserved for extraordinary circumstances”
and are not to “be filed as a matter of routine practice.” LR 7.2(E), NDGa; Adler

dismissal of the action for his failure to pay the appropriate filing fee was a mistake
or an instance requiring “administrative relief.” Plaintiff was fully aware that he
knowingly paid the incorrect filing fee—in an untimely manner no less.

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v. Wallace Computer Servs., Inc., 202 F.R.D. 666, 675 (N.D. Ga. 2001). These are
not “extraordinary circumstances.”
Plaintiff’s contention that he paid the appropriate filing fee in the action is
similarly meritless. Plaintiff did not initially pay a filing fee in the action. On
March 29, 2017—nearly one month after Magistrate Judge King issued an order
converting the habeas corpus action to a civil rights action and after Magistrate
Judge Walker issued her Final R&R recommending dismissal of the case because
Plaintiff failed to pay the proper filing fee—Plaintiff chose to pay the $5 filing fee
required to proceed in a habeas corpus action. Plaintiff was fully aware that the
action had been converted from a habeas corpus action to a civil rights action.
Plaintiff may not now argue that he satisfied the filing fee requirement by
knowingly paying the incorrect filing fee. Plaintiff’s related argument that the
action should not have been subjected to frivolity review is likewise unpersuasive
because the action was initiated without a filing fee being paid, which promptly
and rightly triggered a frivolity review of Plaintiff’s Complaint.
Plaintiff’s final argument—that Judge Duffey should have recused
himself—also fails. There are no facts or circumstances here which would call
into question the Court’s impartiality. 28 U.S.C. § 455(a). Applying the criteria
set forth in McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir. 1990),
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the Court concludes that an “objective, disinterested, lay observer fully informed of
the facts underlying the grounds on which recusal [is] sought,” would not
“entertain a significant doubt about” this Court’s impartiality in this matter.
McWhorter, 906 F.2d at 678. A fully-informed observer would not be convinced
that the undersigned’s impartiality can reasonably be questioned. To the contrary,
a fully-informed observer would conclude that there are important reasons for
the undersigned not to recuse himself. Allowing litigants, especially vexatious
litigants, to fabricate “conflicts” by filing retaliatory lawsuits as a means of
manipulating the assignment of judges to their cases would undermine, rather than
enhance, public confidence in the integrity of the judicial system.
B.

Plaintiff’s IFP Application

Plaintiff also seeks to have the Court approve his IFP Application so that he
may appeal the June 8th Order. 2 “An appeal may not be taken in forma pauperis if
the trial court certifies in writing that it is not taken in good faith.” 28 U.S.C.
§ 1915(a)(3). A party “lacks good faith in bringing an appeal if the appeal is
without arguable merit in law or fact.” Radford v. Walker, No. 1:07-cv-1756WSD, 2009 WL 54508, at *3 n.3 (N.D. Ga. Jan. 8, 2009) (citing
2

Plaintiff’s related Motion for Clerk to Transmit Notice of Appeal is denied
as moot because this was already done on June 22, 2017 [15].

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Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) cert. denied, 540 U.S. 1112
(2004)).
The individual seeking to appeal IFP also must submit a statement of good
faith issues to be appealed. Fed. R. App. P. 24(a)(1)(C) (“The party must attach an
affidavit that . . . states the issues that the party intends to present on appeal.”). A
statement of issues to be appealed enables the court to determine whether the
appeal would be frivolous or not taken in good faith. See Howard v. Huntington
Nat’l Bank, No. 2:09-cv-251, 2010 WL 4642913, at *3 (S.D. Ohio Nov. 4, 2010)
(“The affidavit . . . does not include a statement of the issues he intends to present
on appeal, the omission of which is fatal to a Rule 24(a) motion.”); Martin v. Gulf
States Utils. Co., 221 F. Supp. 757, 760 (W.D. La. 1963) (“The statement of
points . . . will . . . enable us to more intelligently determine whether or not the
proposed appeal is frivolous, or not made in good faith.” (citations omitted)).
Plaintiff here did not “attach an affidavit” describing the good faith issues to
be appealed, and his IFP Application therefore is required to be denied. Fed. R.
App. P. 24(a)(1)(C); Howard, 2010 WL 4642913, at *3. Even if Plaintiff had
attached the required affidavit, his IFP Application still requires dismissal because,
for the reasons stated in the Court’s June 8th Order, Plaintiff is not entitled to relief

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and his appeal is not “capable of being convincingly argued.” Sun v. Forrester, 939
F.2d 924, 925 (11th Cir. 1991) (per curiam).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff Mike Redford’s Motion to

Vacate Three Strikes Provision [17], Rule 60 Motion to Correct Judgment [19],
Petition for Administrative Remedy [21], and Application to Appeal In Forma
Pauperis [22] are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Clerk to Transmit
Notice of Appeal [18] is DENIED AS MOOT.

SO ORDERED this 3rd day of October, 2017.

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