Taylor v. Shepard et al

Filing 46

MEMORANDUM Opinion and Order. Signed by the Honorable Marvin E. Aspen on 6/13/2018. Mailed notice. (ew, )

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DEXTER TAYLOR,
Plaintiff,
v.
MICHAEL SHEPARD, MALCOLM,
DOMIO, GARRY McCARTHY, and
CITY OF CHICAGO,
Defendants.

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No. 18 C 458
Hon. Marvin E. Aspen

MEMORANDUM OPINION AND ORDER
MARVIN E. ASPEN, District Judge:
Presently pending are Plaintiff Dexter Taylor’s pro se motions to vacate the dismissal of
this matter pursuant to Federal Rule of Civil Procedure 60(b) (Mot. to Vacate (Dkt. No. 33)) and
motion for disqualification of the presiding Judge (Mot. to Disqualify (Dkt. No. 36)). In support
of his motions, Taylor has filed a number of letters and affidavits. (Dkt. Nos. 30, 34, 37.) On
April 20, 2018, this Section 1983 and malicious prosecution action was dismissed for want of
prosecution. (Dkt. Nos. 10–11.) For the following reasons, Taylor’s motion to vacate the
dismissal of this matter is hereby granted (Dkt. No. 33) and Taylor’s motion for disqualification
is denied (Dkt. No. 36). A number of Taylor’s motions, some of which are unsigned, are also
stricken as redundant and moot. (Dkt. Nos. 12, 15, 17, 21, 24, 27, 40, 42.) On or before
July 11, 2018, Taylor must either pay the $400.00 civil case filing fee or refile an in forma
pauperis (“IFP”) application with a fully completed financial affidavit curing the defects
identified in the Court’s February 22, 2018 Order (Dkt. No. 6) or this case will again be
dismissed for want of prosecution. This is a final deadline.

BACKGROUND
On January 21, 2018, Taylor filed a complaint against Chicago Police Officers Michael
Shepard and Malcolm Domio, Former Superintendent of Chicago Police Garry McCarthy, and
the City of Chicago. (Compl. (Dkt. No. 1).) Taylor’s complaint details a traffic stop initiated by
Chicago Police on June 17, 2012 shortly after Taylor drove through the intersection of 111th
Street and Racine Avenue in Chicago. (Id. ¶ 8.) Taylor alleges that he reached a “total and
complete stop” at the stop sign before entering the intersection, but that the officers issued him a
traffic citation for running a stop sign, and “charged him with running through the stop sign by
stopping at the white line just past the sign.” (Id.) Taylor’s complaint includes claims pursuant
to 24 U.S.C. § 1983, a claim of malicious prosecution, and claims of McCarthy and the City of
Chicago’s respondeat superior liability. (Id. ¶¶ 22–52.)
On February 22, 2018, Taylor’s petition to proceed IFP was denied because the
handwriting on his application was illegible, which prevented Taylor’s total income from being
ascertained, as is required to analyze his ability to pay required court fees. (Dkt. No. 6.) The
Order directed Taylor to pay the $400.00 civil case filing fee or refile a corrected IFP application
on or before March 31, 2018. (Id. at 2.) On April 20, 2018, after Taylor had neither refiled a
corrected motion for leave to proceed IFP nor paid the mandated filing fee, his case was
dismissed for want of prosecution and judgment was entered. (Dkt. Nos. 10–11.)
Currently pending are Taylor’s motions to vacate the dismissal pursuant to Federal Rule
of Civil Procedure 60(b) and to disqualify the presiding Judge. Taylor first filed his motions to
vacate dismissal and disqualify on May 18, 2018. (Dkt. Nos. 12, 15.) Identical motions were
repeatedly filed. (Dkt. Nos. 17, 21, 24, 27.) On May 29, 2018, Taylor was ordered to refile the
motions with the required signature and personal information as required by Federal Rule of

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Civil Procedure 11(a) as none were signed. (Dkt. No. 31.) Taylor timely refiled signed motions
on June 1, 2018. (Dkt. Nos. 33, 36.) Taylor has again filed identical copies of his signed
motions. (Dkt. Nos. 40, 42.)
While Taylor’s complaint was filed by counsel, Taylor filed the pending motions pro se
after his former counsel withdrew on April 20, 2018. (Dkt. Nos. 8, 9.) As Taylor is proceeding
as a pro se litigant, his pleadings will be “liberally construe[d].” Parker v. Four Seasons Hotels,
Ltd., 845 F.3d 807, 811 (7th Cir. 2017).
ANALYSIS
I.

RULE 60(B) MOTION TO VACATE DISMISSAL
Taylor seeks to vacate the final judgment in this matter. In addition to a number of

outrageous and unfounded allegations that will not be addressed, Taylor states he failed to meet
the ordered deadline because his former attorney terminated his representation without sufficient
notice to allow Taylor to hire new representation, request an extension of time for filing his IFP
application, or timely file the IFP application pro se before the deadline. (Mot. to Vacate at 2.)
Rule 60(b) allows a court to “relieve a party . . . from a final judgment” in a number of
instances, including “mistake, inadvertence, surprise, or excusable neglect.” Fed. R. Civ.
P. 60(b)(1). In considering whether excusable neglect exists, all relevant circumstances are
considered, including the length of the delay; the delay’s impact on judicial proceedings; the
reason for the delay, including whether it was within the reasonable control of the movant;
danger of prejudice to the non-movant; and the interests of efficient judicial administration.
United States v. Brown, 133 F.3d 993, 996 (7th Cir. 1998). The decision whether to grant relief
under Rule 60(b) is a matter of discretion for the district court judge. Helm v. Resolution Tr.
Corp., 84 F.3d 874, 877 (7th Cir. 1996).

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In this instance, excusable neglect justifies Taylor’s failure to refile his IFP application or
pay the filing fee by the deadline. First, Taylor’s counsel’s filed his motion to withdraw on
March 31, 2018, the same day Taylor was ordered to either refile his IFP application or pay his
filing fee. (Dkt. No. 8.) Taylor represents he was unaware that his attorney did not refile his IFP
application. (Mot. to Vacate at 1.) Other than the deadline in the initial order denying his
motion for leave to file IFP (Dkt. No. 8), Taylor was not given any prior warning that his case
risked dismissal for want of prosecution after the withdrawal of his attorney. Cf.
Vega v. Chipotle Mexican Grill, Inc., No. 14 C 7124, 2015 WL 7776877, at *3
(N.D. Ill. Dec. 3, 2015) (denying Rule 60(b) motion to vacate dismissal after plaintiff repeatedly
failed to respond to discovery requests or appear in court); Jackson v. City of Chi.,
No. 07 C 7066, 2011 WL 737584, at *1–2 (N.D. Ill. Feb. 23, 2011) (denying Rule 60(b) motion
after plaintiff repeatedly failed to comply with court orders). Accordingly, it appears Taylor
missed the deadline due to reasons largely outside of his control, and was given virtually no
notice to find a new attorney or request an extension before March 31, 2018. Second, Taylor
filed his motion to reopen less than thirty days after judgment was entered in the case, a
reasonably short time. Cf. Ried v. Swift Gift, Ltd., No. 04 C 6605, 2006 WL 398171, at *5
(N.D. Ill. Feb. 14, 2006) (finding a four month delay between dismissal of a case for want of
prosecution and filing Rule 60 motion “unreasonable”). Third, a delay of twenty-eight days at
such an early stage of the proceedings poses little risk of prejudice to Defendants. Id. at *3.
Considering the circumstances, Taylor’s failure to act by the ordered deadline constitutes
excusable neglect, and his case is reopened pursuant to Rule 60(b)(1).

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II.

MOTION FOR DISQUALIFICATION
Taylor also seeks to disqualify this Court from presiding over his case for cause. Again,

Taylor levels a number of unsubstantiated and inflammatory accusations against the Court in his
motion. Taylor’s only arguably non-frivolous argument is that the Judge assigned to this case is
disqualified based on former employment with the Corporation Counsel for the City of Chicago,1
which Taylor alleges results in bias against him in this matter. (Mot. to Disqualify at 2.)
The disqualification of federal judges is governed by 28 U.S.C. § 455. Section 455 aims
to “promote public confidence in the impartiality of the judicial process” and to require recusal
when a judge harbors actual personal bias or prejudice against a litigant. Schmude v. Sheahan,
312 F. Supp. 2d 1047, 1062, 1066 (N.D. Ill. 2004). A “district judge is . . . obligated not to
recuse himself without reason just as he is obligated to recuse himself when there is reason.”
United States v. Baskes, 687 F.2d 165, 170 (7th Cir.1981).
Taylor alleges Section 455(b)(3) disqualifies this Court from this case. (Dkt. No. 37 ¶ 2.)
This statute provides a judge shall disqualify himself if “he has served in governmental
employment and in such capacity participated as counsel, adviser or material witness concerning
the proceeding or expressed an opinion concerning the merits of the particular case in
controversy.” 28 U.S.C. § 455(b)(3). This section does not apply here as it would have been
impossible for the assigned Judge to have participated or commented on Taylor’s case during
employment with the City of Chicago, which ended in 1971, when the events at issue in this case
did not begin until 2012. (Compl. ¶ 8.)
Section 455(a) also could be construed to apply to the situation of prejudice arising from
a judge’s prior employment. Under § 445(a), a judge must recuse himself from “any proceeding
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The presiding Judge worked on the staff of the Corporation Counsel of the City of Chicago
from 1963 to 1971.
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in which his impartiality might reasonably be questioned” based on the perception of an
objective, “reasonable observer.” Schmude, 312 F. Supp. 2d at 1062 (“[T]he inquiry to be made
is whether a reasonable observer, informed of all the surrounding facts and circumstances, would
perceive a significant risk that the judge will resolve the case on a basis other than the merits.”);
see also In re Mason, 916 F.2d 384, 386 (7th Cir. 1990) (“An objective standard is essential
when the question is how things appear to the well-informed, thoughtful observer rather than to a
hypersensitive or unduly suspicious person.”). Considering the substantial passage of time since
the presiding Judge’s employment by the City of Chicago, the Court finds no reasonable outside
observer could find the Judge’s relatively brief time as Corporate Counsel nearly fifty years ago
would impact his handling of this case. See Schurz Commc’ns, Inc. v. FCC, 982 F.2d 1057, 1059
(7th Cir. 1993) (reasoning a Seventh Circuit judge would not recuse himself based on
involvement in litigation sixteen years earlier). The presiding Judge’s eight years as an attorney
for the City of Chicago, during which time he had no involvement with the underlying lawsuit,
does not pose any objective risk that he would be biased in this case. Mason, 916 F.2d at 386
(“Trivial risks are endemic, and if they were enough to require disqualification we would have a
system of preemptory strikes and judge-shopping, which itself would imperil the perceived
ability of the judicial system to decide cases without regard to persons. . . . Thus the search is for
a risk substantially out of the ordinary.”) Taylor’s motion to disqualify the presiding Judge from
this matter is accordingly denied.
CONCLUSION
For the foregoing reasons, Taylor’s motion to vacate the dismissal of this matter is hereby
granted (Dkt. No. 33) and Taylor’s motion for disqualification is denied (Dkt. No. 36). Taylor’s
unsigned and repeatedly filed motions are also stricken as redundant and moot.

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(Dkt. Nos. 12, 15, 17, 21, 24, 27, 40, 42.) On or before July 11, 2018, Taylor must either pay the
$400.00 civil case filing fee or refile an IFP application with a fully completed financial affidavit
curing the defects identified in the February 22, 2018 Order (Dkt. No. 6) or his case will again be
dismissed for want of prosecution. It is so ordered.

____________________________________
Marvin E. Aspen
United States District Judge
Dated: June 13, 2018
Chicago, Illinois

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