Henderson v. Butts et al

Filing 6

ORDER denying 2 Motion for in forma pauperis; adopting 3 Report and Recommendations. Therefore, this action is Dismissed without prejudice. If plaintiff wishes to proceed with these claims, he must submit a new complaint with the full filing fee. Signed by Judge Dudley H. Bowen on 5/15/12. (cmr)

ORIGINAL
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA

FILED
U.S. DISTRICT CO3JR
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MAY IS p 3 3

DUBLIN DIVISION
CLERK:

KEITH HENDERSON,
Plaintiff,
V.

Officer S. WRIGHT, et al.,
Defendants.

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CV 312-030

ORDER
After a careful, c/c novo review of the file, the Court concurs with the Magistrate
Judge's Report and Recommendation, to which objections have been filed (doe. no. 5). The
Magistrate Judge found, pursuant to 28 U.S.C. § 1915(g) , that Plaintiff had three prior cases
that were dismissed for being frivolous or malicious or for failing to state a claim upon which
relief may be granted, and that he did not qualify for the "imminent danger" exception. As
a result, he recommended that Plaintiff's motion to proceed in forma pauperis ("IFP") be
denied and that this action be dismissed. (Doc. no. 3.)
In his objections, Plaintiff notes that he has named the undersigned and the Magistrate
Judge as defendants in a separate case that he initiated at the same time as the instant action.
(Doe. no. 5, pp. 2-3 (citing Henderson v. Barfield, CV 312-029 (S.D. Ga. Apr. 13, 2012)).)
Thus, he appears to contend that the Magistrate Judge improperly ruled on his JFP motion
and that both judicial officers should recuse themselves from this case. (See id.)
Notably, prior to his objections, Plaintiff did not argue for the recusal of either the
undersigned or the Magistrate Judge. In any event, irrespective of the timing of his recusal

argument, the argument is without merit. While recusal maybe required when ajudge "has
a personal bias or prejudice concerning a party," 28 U.S.C. 455(b), "[a] judge is not
disqualified merely because a litigant sues or threatens to sue him." In re Bush, 232 F. App'x
852, 854 (11th Cir. 2007) (per curiam) (quoting United States v. Grismore, 564 F.2d 929,
933 (10th Cir. 1977)); accord Azubuko v. Ro yal, 443 F.3d 302, 304 (3d Cir. 2006) (holding
that pro se plaintiff's pending lawsuit against judge did not warrant recusal); United States

v. Studle y, 783 F.2d 934, 940 (9th Cir. 1986) ("A judge is not disqualified by a litigant's suit
or threatened suit against him, or by a litigant's intemperate and scurrilous attacks." (citations
omitted)); see also In re Taylor, 417 F.3d 649, 652 (7th Cir, 2005) ("[A] per se rule of
disqualification would allow litigants to judge shop by filing a suit against the presiding
judge.. .
As Plaintiff offers nothing beyond the fact that he named thejudicial officers involved
in this case in a separate action, this objection is without merit. Plaintiff's remaining
objections are likewise without merit and do not warrant further discussion. Thus, Plaintiff's
objections are OVERRULED. Accordingly, the Report and Recommendation of the
Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, Plaintiff's motion
to proceed IFP is DENIED (doc. no. 2), and this action is DISMISSED without prejudice.
If Plaintiff wishes to proceed with the claims raised in this lawsuit, he must submit a new
complaint, along with the full filing fee. Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir.
2002) (per curiarn).

SO ORDERED this I-' day of May, 2012, at Augusta, Georgia.

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UNITED SØES DISTRICT GE
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