GLISSON v. INDIANA DEPARTMENT OF CORRECTION et al

Filing 129

ENTRY ON MOTION FOR CHANGE OF JUDGE - This matter is before the Court on Plaintiff Estate of Nicholas Lee Glisson's ("the Estate") Motion for Recusal ("Motion"). [Filing No. 123 .] The Estate claims that, pursuant to 28 U. S.C. § 455(a), the presiding judge in this matter must recuse herself because of personal animus against the Estate's counsel ("Counsel"). Pursuant to 28 U.S.C. § 137, the presiding judge requested that the Chief Judge eit her review the Motion or reassign it to another judicial officer. [Filing No. 125 .] The Chief Judge reassigned the Motion to herself. [Filing No. 127 .] For the reasons stated below, the Court DENIES the Estate's Motion and remands this m atter to the presiding judge. Given the total lack of evidentiary support for the Estate's assertions against the presiding judge, along with the untimeliness of the Estate's motion considering the lengthy pendency of the case, the Chief Judge hereby DENIES the Estate's Motion for Recusal. [Filing No. 123 .] (See Entry). Signed by Criminal Duty Magistrate Judge on 11/13/2017. (APD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
NICHOLAS GLISSON,

)
)
Plaintiff,
)
)
v.
)
)
INDIANA DEPARTMENT OF CORRECTION, )
CORRECTIONAL MEDICAL SERVICES, INC., )
MALAKA G. HERMINA,
)
MARY COMBS,
)
)
Defendants.
)

No. 1:12-cv-1418-SEB-MJD

ENTRY ON MOTION FOR CHANGE OF JUDGE
This matter is before the Court on Plaintiff Estate of Nicholas Lee Glisson’s (“the Estate”)
Motion for Recusal (“Motion”). [Filing No. 123.] The Estate claims that, pursuant to 28 U.S.C.
§ 455(a), the presiding judge in this matter must recuse herself because of personal animus against
the Estate’s counsel (“Counsel”). Pursuant to 28 U.S.C. § 137, the presiding judge requested that
the Chief Judge either review the Motion or reassign it to another judicial officer. [Filing No.
125.] The Chief Judge reassigned the Motion to herself. [Filing No. 127.] For the reasons stated
below, the Court DENIES the Estate’s Motion and remands this matter to the presiding judge.
I.
BACKGROUND
A. Procedural History
The Estate filed this Complaint in Indiana state court on August 31, 2012. [Filing No. 11.] The Complaint was subsequently removed to federal court because of the Estate’s Eighth
Amendment claims and randomly assigned to the presiding judge on October 2, 2012. [Filing No.
1.]

On June 4, 2014, the presiding judge granted in part Defendant Correctional Medical
Services, Inc.’s (“CMS”) Motion for Summary Judgment (“Order”) as to all federal claims asserted
against it and remanded the case to the Marion Superior Court. [Filing No. 92.]
On March 2, 2015, following the presiding judge’s denial of the Estate’s Motion for
Reconsideration, [Filing No. 100], the Estate filed a Notice of Appeal. [Filing No. 101.] The
Seventh Circuit originally affirmed, but subsequently, sitting en banc, reversed and remanded the
case with respect to the Estate’s Monell claim. Glisson v. Ind. Dep’t of Corrs., 849 F.3d 372 (7th
Cir. 2017), cert. denied sub nom. Corr. Med. Servs., Inc. v. Glisson, No. 16-1406, --- U.S. --- (U.S.
Oct. 2, 2017) (No. 16-1406).
B. Motion for Recusal
On October 30, 2017, the Estate filed the instant Motion, alleging that the presiding judge
cannot impartially oversee the Estate’s case due to personal bias against Counsel. [Filing No.
123.] In support of its Motion, the Estate alleges, without any supporting evidence, that the
presiding judge “has directed condescending remarks at [Counsel] in front of juries many times.”
[Filing No. 123 at 1.] The Estate also states, without citation, that “Counsel has reversed this court
several times.” [Filing No. 123 at 1.] Finally, the Estate asserts that the presiding judge “has also
presided over many cases prosecuted by [Counsel],…including a case in which [the presiding
judge] recused herself.”
With respect to this last assertion, the Estate attached a previous Motion for Change of
Judge, [Filing No. 123-1], filed by Counsel, as well as the accompanying Entry on Plaintiff’s
Motion for Change of Judge (“Change of Judge Order”). [Filing No. 123-2.] In Counsel’s Motion
for Change of Judge, also filed pursuant to 28 U.S.C. § 455(a), Counsel asserted that the presiding
judge was a “personal friend” of a defendant that was named both individually and in his official

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capacity as the Marion County Sheriff. [Filing No. 123-1 at 2.] The sheriff had previously served
as United States Marshal in the Southern District of Indiana before he was elected sheriff. [Filing
No. 123-1 at 1.] In that case, Counsel alleged, without record citation, that the sheriff “considers
himself a friend of the sitting judge, [therefore] it appears that the plaintiff would not have an
impartial review of the merits of his claims.” [Filing No. 123-1 at 2.]
In the Change of Judge Order, entered on December 9, 2010, the presiding judge recused
herself from the case, “but not for the reasons cited by Plaintiff.” [Filing No. 123-2 at 1 (emphasis
in original).] The presiding judge noted that she had presided over numerous cases when the
sheriff was a named party and “ruled against him, awarded damages against his office, and even
held him in contempt.” [Filing No. 123-2 at 1.] The presiding judge ruled as follows:
The undersigned’s relationship with [the sheriff], though longstanding, has been
and remains professional and not personal. Nevertheless, the undersigned judge
grants Plaintiff’s motion because doing so will remove from the future conduct of
this litigation any concerns about her ability to be fair and impartial and ease the
mind of Plaintiff’s counsel who has, on many occasions, expressed publicly his lack
of confidence in said judge, giving rise to the likelihood that if there is any bias
here, it may be on the part of Plaintiff’s counsel rather than this judge.
[Filing No. 123-2 at 1-2.]
The Estate claims the “gratuitous response” set forth in the Recusal makes it “obvious that
the [presiding judge] cannot remain impartial.” [Filing No. 123 at 2.]
II.
DISCUSSION
The Estate brings its Motion under 28 U.S.C. § 455(a), which requires a judge to
“disqualify [herself] in any proceeding in which [her] impartiality might be questioned.” The
Estate claims that its “counsel believes the prosecution of this case would be prejudiced because
of the personal animus expressed by [the presiding judge] toward plaintiff’s counsel.” [Filing No.
123 at 2.] The Court notes that this allegation suggests that the presiding judge is biased against
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Counsel, which is specifically addressed by 28 U.S.C. § 455 (b)(1). § 455(b)(1) requires a judge
to disqualify herself “[w]here [she] has a personal bias or prejudice concerning a party[.]” The
Estate has brought its claim under § 455(a), which “is generally understood to encompass the
situations outlined in § 455(b), but also a broader range of situations in which impartiality exists,
but its appearance is compromised.” United States v. Herrera-Valdez, 826 F.3d 912, 918 (7th Cir.
2016). In the interest of completeness, the Court will address the Estate’s Motion under both §
455(a) and § 455(b)(1).
A. Disqualification under 28 U.S.C. § 455(a)
“The standard in any case for a § 455(a) recusal is whether the judge’s impartiality could
be questioned by a reasonable, well-informed observer.” In re Hatcher, 150 F.3d 631, 637 (7th
Cir. 1998) (citing Hook v. McDade, 89 F.3d 350, 354 (7th Cir. 1996)). “The test for appearance
of partiality is whether an objective, disinterested observer fully informed of the reasons that
recusal was sought would entertain a significant doubt that justice would be done in the case.”
Herrera-Valdez, 826 F.3d at 917 (citation omitted). Recusal is required when a “reasonable person
perceives a significant risk that the judge will resolve the case on a basis other than the merits.”
In re Mason, 916 F.2d 384, 385 (7th Cir. 1990).
The Estate’s Motion, brought over five years after this matter was initially filed, fails to set
forth any evidence that it is entitled to relief under § 455(a). The Estate’s claim that the presiding
judge exhibits a personal animus against Counsel is merely a bald assertion unsupported by any
corroborating evidence. The only evidence submitted by the Estate in its Motion relates to a
recusal by the presiding judge entered nearly seven years ago. [Filing No. 123-2.] Importantly,
the presiding judge did not recuse herself on the grounds that she exhibited animus towards
Counsel, but rather sought to avoid any appearance of impropriety due to a professional

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relationship with one of the defendants. [Filing No. 123-2.] Moreover, the Court does not find
that the remarks asserted in the Change of Judge Order demonstrate an “obvious” bias towards
Counsel, [Filing No. 123 at 2]; the presiding judge simply defended her integrity and ability to
preside in a fair and reasonable manner. [Filing No. 123-2.]
Neither the language in the Change of Judge Order nor the bare assertions set forth in the
Estate’s Motion would generate any, much less “significant doubt[,] that justice could be done in
[this] case.” Herrera-Valdez, 826 F.3d at 917 (citation omitted).
B. Disqualification under 28 U.S.C. § 455(b)(1)
The Estate’s Motion fares no better under § 455(b)(1). “In determining whether a judge
must disqualify himself under 28 U.S.C. § 455(b)(1), the question is whether a reasonable person
would be convinced the judge was biased.” Hook, 89 F.3d at 355 (quotation marks and citation
omitted). This bias must stem from a personal animus or malice harbored by the judge of a kind
that a fair-minded individual could not entirely set aside. Id. Importantly, “[§] 455(b)(1) requires
recusal only if actual bias or prejudice is proved by compelling evidence.” O’Regan v. Arbitration
Forums, Inc., 246 F.3d 975, 988 (7th Cir. 2001) (quotations and citations omitted). The Supreme
Court has explained that mere judicial remarks do not meet this substantial burden:
[J]udicial remarks during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias
or partiality challenge. They may do so if they reveal an opinion that derives from
an extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible…. Not establishing
bias or partiality, however, are expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what imperfect men and
women, even after having been confirmed as federal judges, sometimes display. A
judge’s ordinary efforts at courtroom administration – even a stern and shorttempered judge’s ordinary efforts at courtroom administration – remain immune.
Liteky v. United States, 510 U.S. 540, 555-556 (1994) (emphasis in original).

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The comment in Liteky appears to cover the allegations set forth by the Estate in its Motion,
wherein it complains, without citation to evidence, about “condescending remarks at counsel in
court in front of juries many times.” [Filing No. 123 at 1]. The Estate argues that similar remarks
“are what are anticipated, and it is plaintiff’s belief that this would seriously prejudice the plaintiff
Glisson Estate’s chance for a fair and impartial trial.”

[Filing No. 126 at 1.]

If such

“condescending remarks” gave rise to a level of partiality indicating “such a high degree of
favoritism or antagonism as to make fair judgment impossible[,]” Liteky, 510 U.S. at 555, it was
incumbent upon the Estate to establish that fact by “compelling evidence,” which it has failed to
do here. O’Regan, 246 F.3d at 988 (quotations and citation omitted).
Finally, the Court notes that if such an allegedly obvious bias was anticipated by the Estate,
it would seem prudent to seek recusal immediately, rather than litigate this case for five years prior
to seeking recusal. A court “should exercise care in determining whether recusal is necessary,
especially when proceedings already are underway.” In re United States, 572 F.3d 301, 308 (7th
Cir. 2009); see also In re Nat’l Union Fire Ins. Co., 839 F.2d 1226, 1229 (7th Cir. 1988) (“Judges
have an obligation to litigants and their colleagues not to remove themselves needlessly,…because
a change of umpire in mid-contest may require a great deal of work to be redone…and facilitate
judge-shopping.” (internal citation omitted)).
III.
CONCLUSION
Given the total lack of evidentiary support for the Estate’s assertions against the presiding
judge, along with the untimeliness of the Estate’s motion considering the lengthy pendency of the
case, the Chief Judge hereby DENIES the Estate’s Motion for Recusal. [Filing No. 123.]

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Date: 11/13/2017

Distribution via CM/ECF:

David A. Arthur
OFFICE OF THE ATTORNEY GENERAL
[e-mail]
Jeb Adam Crandall
BLEEKE DILLON CRANDALL PC
[e-mail]
Carol A. Dillon
BLEEKE DILLON CRANDALL, P.C.
[e-mail]
J. Richard Moore
BLEEKE DILLON CRANDALL
[e-mail]
Michael K. Sutherlin
MICHAEL K. SUTHERLIN & ASSOCIATES, PC
[e-mail]

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