Hertel v. Frese

Filing 30

OPINION AND ORDER: DENYING 25 Motion for Review of Magistrate Judge Decision by a District Judge ; DENYING 26 Motion to Appoint Counsel ; DENYING 27 Motion for Reconsideration ; DENYING 28 Motion to Disqualify Judge. Signed by Judge Joseph S Van Bokkelen on 1/12/12. (jld)

United States District Court
Northern District of Indiana
TRACY HERTEL,
Plaintiff,
Civil Action No. 3:11-CV-58 JVB
v.
JEROME FRESE,
Defendant.
OPINION AND ORDER
Plaintiff, a prisoner proceeding pro se, has filed numerous motions in this closed case.
(DE 25, 26, 27, 28.) For the reasons explained in the final order, the Court dismissed his case
under 28 U.S.C. § 1915A because his claims were barred by judicial immunity and Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). (DE 23.)
Plaintiff requests the Court recuse itself due to bias, which, in his view, is demonstrated
by the Court’s adverse rulings. (DE 28, 29.) The adverse rulings do not establish an
impermissible bias that would warrant recusal. See 28 U.S.C. § 455 (2006) (enumerating the
circumstances for self-disqualification); Liteky v. United States, 510 U.S. 540, 555 (1994)
(explaining, among other relevant points, that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion”). Accordingly, the Court denies this motion (DE 28,
29) and Plaintiff’s request that counsel be appointed to assist him in preparing a “certificate of
good faith” (DE 26).
In the remaining two motions, Plaintiff argues he should not have been subjected to the
screening requirement contained in 28 U.S.C. § 1915A because, in his view, he is not a prisoner.
(DE 25, 27.) As explained in the final order, Plaintiff is presently serving a term of probation in
prison as ordered by a state criminal judge. (DE 23 at 2-3.) Despite Plaintiff’s argument that this

sentencing structure is illegal, he is presently incarcerated pursuant to a state conviction, and he
is therefore a “prisoner” within the meaning of 28 U.S.C. § 1915A(c). The Court appropriately
screened his case under that provision. To the extent Plaintiff is alleging some other error in
connection with the screening order, the Court has reviewed the order and finds no error.
Accordingly, these motions are denied.
For the reasons set forth above, the pending motions (DE 25, 26, 27, 28) are DENIED.
SO ORDERED on January 12, 2012.
s/ Joseph S. Van Bokkelen
JOSEPH S. VAN BOKKELEN
UNITED STATES DISTRICT JUDGE

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