West v. Olens et al
Filing
18
ORDER denying 16 Motion to Alter Judgment; denying as moot 17 Motion for TRO. Signed by Judge J. Randal Hall on 8/29/16. (cmr)
IN THE UNITED
STATES DISTRICT COURT
SOUTHERN DISTRICT
OF
FOR THE
GEORGIA
STATESBORO DIVISION
MARQUIS B.
WEST,
Plaintiff,
CV
v.
616-038
et al. ,
SAM OLENS,
Defendants.
ORDER
Pending before
alter or
the Court
amend judgment and motion for
the reasons set forth below,
I.
Plaintiff
Prison
brought
Plaintiff's pro se motion to
are
in
is
a
state
Reidsville,
suit against
recusal
(doc.
16) .
For
these motions are DENIED.
BACKGROUND
prisoner
Georgia.
confined
Plaintiff,
Defendants on March
at
Georgia
State
proceeding pro
30,
2016.
se,
Plaintiff
styled his complaint as an "Independent Action Pursuant to Fed.
R.
Civ.
P.
60(d)(3)."
institution of
Proceed
In
this case,
Forma
(Doc.
1.)
Contemporaneously
with
the
Plaintiff filed a Motion for Leave to
Pauperis
(doc.
2),
Motions
for
Temporary
Restraining Order (docs. 3, 4), and a Motion for Judicial Notice
of Adjudicated Facts
On
May
16,
(doc.
2016,
7) .
the
United
States
recommended that Plaintiff's suit be dismissed.
Magistrate
(Doc.
12.)
Judge
The
Magistrate Judge found that Plaintiff's action appeared to be an
attempt to circumvent
the three strikes provision of the
Litigation Reform Act
(28 U.S.C.
Prison
§ 1915(g)),1 and that even if
Plaintiffs action did not fall under the purview of said three
strikes
provision,
60(d)(3)
claim.
recommended
order
the
be
(Id.
that
denied
merits
or
irreparable
denied
Plaintiff
2-4.)
Plaintiff's
as
that
he
had
not
(Id.
Motion
to
at
shown
a
4.)
a
temporary
likelihood
was
The
Leave
plausible
Magistrate
for
relief
for
state
The
motions
injunctive
injury.
Plaintiff's
Pauperis,
at
failed
of
necessary
Magistrate
to
Proceed
Judge
Rule
also
restraining
success
to
prevent
Judge
In
on
also
Forma
and preemptively recommended that Plaintiff be denied
leave to appeal in forma pauperis should he request the same.
(Id.
at 4-5.)
After conducting an independent and de novo review of the
entire record, this Court overruled Plaintiff's objections2 and
adopted the Magistrate Judge's Report and Recommendation as its
1 The Magistrate Judge found that Plaintiff had previously filed at least
three civil actions or appeals under Section 1915 that had been dismissed for
being frivolous or for failing to state a claim. See, e.g., West v. Magruder,
No.
6:14-CV-055 (S.D.
Ga.
Sept.
25,
2014)
(dismissed for failure to prepay
filing fee under three strikes provision of PLRA); West v. Ga. Pep't of
Corr., No. l:08-CV-382 (N.D. Ga. Mar. 7, 2008) (dismissed for failure to
exhaust
administrative
remedies);
West
v. Higgins,
No.
6:06-CV-83
(S.D. Ga.
June 30, 2008) (appeal dismissed as frivolous); and West v. Warnock, No.
6:05-CV-47 (S.D. Ga Aug. 17, 2006) (appeal dismissed as frivolous).
(Doc.
12, at 3.)
The Magistrate Judge also found that Plaintiff could not claim
the "imminent danger" exception to the filing fee requirement because he was
not in imminent danger at the time he filed suit in this Court.
(Id.)
2 Plaintiff astutely points out a scrivener's error in the Court's Order
misidentifying Plaintiff's objections to the Magistrate Judge's Report and
Recommendation as being docketed at Document 5 (as opposed to Document 13) .
(Doc.
16,
at 3-4.)
2
own opinion on August
Plaintiff's
Complaint,
Restraining
Judicial
Order,
1, 2016.
denied
(Doc.
Plaintiff's
dismissed
as
Notice
Plaintiff
of
Adjudicated
leave
to
proceed
closed the case.
Plaintiff
14.)
in
moot
Facts,
forma
The Court dismissed
Motions
for
Plaintiff's
and
Temporary
Motion
preemptively
pauperis
on
this
case
and
(Id.)
now
also
denied
appeal,
moves
to
alter
or
amend
the
Court's
pursuant to Federal Rule of Civil Procedure 59(e).
Plaintiff
for
requests
recuse
themselves
show malicious bias
because
presently
"[t]heir
and prejudice against
se inmate litigator."
II.
that the judges
(Doc.
Order
16.)
assigned to
rulings
[Plaintiff]
[.
.
.]
as a pro
(Id. )
Motion to Alter or Amend Judgment
A party may seek to alter or amend a judgment in a civil
case within twenty-eight days after the entry of the judgment.
Fed.
R.
Civ.
P.
59(e).
Because
reconsideration of a judgment
after its entry is an extraordinary remedy which should be used
sparingly, a movant must set forth facts or law of a strongly
convincing nature
decision.
to
Bostic v.
induce the
Astrue,
No.
at *1 (S.D. Ga. July 31, 2012).
used
"to
evidence
relitigate
that
could
court
to
reverse
l:12-CV-082,
its
prior
2012 WL 3113942,
A Rule 59(e) motion may not be
old
matters,
have
been
raise
argument
raised prior
or present
to the
entry of
judgment," as "the only grounds for granting a Rule 59(e) motion
are
newly-discovered
fact."
Arthur
(quotations
rehashing
v.
evidence
King,
500
omitted).
arguments
or
F.3d
"Rule
already
manifest
1335,
59(e)
1343
is
rejected
a
the
Bostic,
686
(M.D.
Here,
Ga.
has
evidence or manifest
Plaintiff
the
does
Inc.,
or
for
for
3113942,
169 F.R.D.
failed to
demonstrate
newly discovered
errors of law or fact that would justify a
Court
not
should amend or alter
dispute
that
cases that were dismissed as
state a claim.
2007)
vehicle
2012 WL
or
1996)).
Plaintiff
finding that
law
Cir.
court
at *1 (quoting Wendy's Int'l v. Nu-Cape Const.,
680,
of
(11th
not
by
refuting the court's prior decision."
errors
he
has
frivolous,
its
brought
prior Order.
at
malicious,
least
three
or failing to
He has presented no additional evidence that he
was in imminent danger at the time he filed his complaint so as
to justify the waiver of prepayment of his filing fee.
U.S.C.
Cir.
§ 1915(g); Medberry v.
1999)
("[A]
prisoner's
Butler,
185 F.3d 1189,
See 28
1193 (11th
allegation that he faced
imminent
danger sometime in the past is an insufficient basis to allow
him to proceed in forma pauperis pursuant to the imminent danger
exception
to
additional
60(d)(3)
F.2d
statute.").
evidence
sufficient
Nor
to
has
state
he
a
presented
plausible
any
Rule
claims, let alone evidence sufficient to entitle him to
preliminary
825
the
injunctive
281,
283-84
relief thereon.
See Booker v.
Dugger,
(11th Cir.
("Where
from
1987)
relief
a
judgment
is
sought
established
averments
by
of
for
clear
the
fraud
and
existence
on
the
court,
convincing
of
fraud
the
fraud
evidence.
made
on
must
be
Conclusory
information
and
belief and unaccompanied by a statement of clear and convincing
probative facts which support such belief do not serve to raise
the
issue
of
the
existence
of
Horton v. City of St. Augustine,
Cir.
2001)
drastic
("[A]
remedy
established the
including a
fraud."
Fla.,
omitted));
272 F.3d 1318,
1326
(11th
preliminary injunction is an extraordinary and
not
to
burden
be
granted
unless
of persuasion as
to
demonstration that the movant
likelihood of success on the merits,
Rather,
(quotations
the
movant
all
four
has
a
clearly
elements"
substantial
(quotations omitted)).
Plaintiff uses his Rule 59(e) motion to rehash his
previously rejected arguments, refute the Court's reasoning, and
blame the Court for allegedly failing to liberally construe his
pro se pleadings.
already
heard,
Both the Magistrate Judge and this Court have
thoroughly
considered,
complaints that Plaintiff now raises.
and
rejected
the
very
Because these complaints
do not present newly-discovered evidence that would support a
finding of imminent danger or fraud on the court or otherwise
demonstrate
clear
error
or manifest
injustice
in
this
Court's
August 1, 2016 Order, the Court finds neither a factual or legal
basis for altering or amending its decision in this case.
III.
Within
Plaintiff
the
body
includes
of
a
Recusal
a
formal
is
his
Motion
request
case recuse themselves.
construed as
Motion for Recusal
that
(Doc.
motion
to Alter
the
16,
for
at
Judgment,
assigned
to
this
This request has been
recusal.
sufficient
a
district
affidavit
pending has
court
that
proceeding
the
a personal bias
App! x
Jones v.
Under Section 144, a judge must recuse himself when
to
F.
and 455.
Cir.
party
459
144
Land
a
Co.,
§§
Commonwealth
2012).
Ins.
judges
7.)
governed by 28 U.S.C.
Title
or Amend
"files
judge before
recusal
party
would convince
144,
455(a),
impartiality
455(a).
a
might
Section
disinterested,
underlying
the
moving
a reasonable person that
Christo v. Padgett,
Section
the
223 F.3d 1324, 1333
judge
lay
must
reasonably
455(a)
on
§ 144.
must
bias
(11th
timely
and
matter
is
be
allege
facts
recusal
himself
28
where
Under
if
"his
U.S.C.
§
"an
objective,
of
informed
recusal
that
actually exists."
questioned."
fully
which
"To warrant
(11th Cir. 2000).
disqualify
requires
observer
grounds
a
whom the
28 U.S.C.
§
810
or prejudice either against him or
in favor of any adverse party."
under
808,
the
was
facts
sought
would
entertain a significant doubt about the judge's impartiality."
Parker
1988).
v.
Connors
Steel
Co.,
855
F.2d
1510,
1524
(11th
Any doubts must be resolved in favor of recusal.
States v. Kelly,
888 F.2d 732, 744 (11th Cir.1989).
Cir.
United
With regard to recusal under Section 144, Plaintiff has not
satisfied the relevant procedural requirements.
144.
Even
ignoring
unsworn declaration
is
the
procedural
insufficient
See 28 U.S.C.
deficiency,
as
it
allege judicial bias against Plaintiff,
does
§
Plaintiff's
not
sufficiently
but rather is simply a
recitation of Plaintiff's disagreement with the assigned judges'
rulings.
See
Jones,
459
F.
App' x at
811
(11th Cir.
2012).
"Such judicial rulings cannot serve as the basis for recusal or
cast
doubts
on
impartiality
unless
pervasive bias and prejudice."
Grinnell Corp., 384 U.S.
563,
[Plaintiff]
establishes
Id. ; see also United States v.
583 (1966)
("The alleged bias and
prejudice to be disqualifying 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.")
Similarly,
because,
recusal
under
Section
as previously stated,
455
is
case.
Disqualification
warranted
Plaintiff bases his motion for
recusal on his disagreement with the judges'
this
not
"may not
be
prior rulings in
predicated
on
the
judgefs rulings in the instant case or in related cases." Deems
v.
C.I.R.,
Phillips v.
Review
of
Cir.1981)).
426 F.
App'x.
Joint Legis.
the
State
"Neither
of
a
839,
Comm.
843
Cir.
2011)
(citing
on Performance and Expenditure
Miss.,
trial
(11th
637
judge!s
F.2d
1014,
comments
1020
on
(5th
lack
of
evidence,
court
rulings
and counsel
adverse
to
a party,
constitute pervasive
of Bd. of Regents of State of Fla.,
1983)
nor
friction between the
bias."
Hamm v.
708 F.2d 647,
651
Members
(11th Cir.
(citations omitted).
Because
reasonable
recusal
Plaintiff
doubts
is
as
has
to
not
put
the
Based
on
the
any
assigned
not warranted in this
IV.
forth
evidence
judges'
raising
impartiality,
case.
CONCLUSION
foregoing,
Plaintiff's
motion
to
alter
or
amend judgment and motion for recusal (doc. 16) are DENIED.
Plaintiff
Restraining
has
Order
also
regarding
Plaintiff by members
However,
this
Plaintiff's
a
new
alleged
Motion
for
retaliation
Temporary
taken
against
of the Georgia Department of Corrections.
motion
claims
filed
and
was
filed
closed the
after
the
case.
Court
Further,
as
dismissed
set
forth
above, the Court has denied Plaintiff's motion to alter or amend
its
Order
disposing
of
Plaintiff's
claims.
Accordingly,
Plaintiff's pending Motion for Temporary Restraining Order (doc.
17)
is DENIED AS MOOT.
ORDER ENTERED at Augusta,
August,
Georgia,
this ocr^ day of
2016.
3AL
HALL
[TED/STATES DISTRICT JUDGE
CRN
DISTRICT OF GEORGIA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?