ISBY v. BENNET et al

Filing 9

Entry on Post-Judgment Motions: Because the statements in the plaintiff's motion for recusal are baseless and false, his motion [dkt 7 ] is denied. Accordingly, the motion to alter or amend the judgment [dkt 8 ] is denied ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Copy sent to Plaintiff via US Mail. Signed by Judge Larry J. McKinney on 10/6/2016. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION

AARON ISBY also known as ISRAEL,

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Plaintiff,
vs.
JAYMISON BENNET,
J. WILLIS,
R. BROWN,
C. NICHOLSON,
D. RUSSELL,
R. MARSHALL,
Defendants.

No. 2:16-cv-00351-LJM-MJD

Entry on Post-Judgment Motions
I.
In his motion to recuse presiding judge, the plaintiff alleges that the undersigned is
biased because he has ties with Department of Correction Officials. The plaintiff also alleges
that such officials discussed this lawsuit with the undersigned before it was dismissed.
Under 28 U.S.C. 455(a), a federal judge must disqualify himself in any proceeding in which
his “impartiality might reasonably be questioned.” Matter of Hatcher, 150 F.3d 631, 637 (7th Cir.
1998). “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.” Id. In Hook v. McDade, 89 F.3d 350,
354 (7th Cir. 1996), the court stated that § 455(a) “asks whether a reasonable person perceives a
significant risk that the judge will resolve the case on a basis other than the merits. This is an
objective inquiry.”

A judge is presumed to be impartial. United States v. Baskes, 687 F.2d 165, 170 (7th Cir.
1981). This presumption is not overcome by specious and unsupported factual allegations like the
ones made by the plaintiff. See In re United States, 158 F.3d 26, 35 (1st Cir. 1998) (“A party cannot
cast sinister aspersions, fail to provide a factual basis for those aspersions, and then claim that the
judge must disqualify [him]self because the aspersions, ex proprio vigore, create a cloud on [his]
impartiality.”). “If a party could force recusal of a judge by [false] factual allegations, the result
would be a virtual ‘open season’ for recusal.” United States v. Greenough, 782 F.2d 1556, 1558
(11th Cir. 1986) (citation omitted). Nor is recusal required on the basis of “unsupported, irrational,
or highly tenuous speculation,” In re United States, 666 F.2d 690, 694 (1st Cir. 1981), yet that is
precisely the character of the petitioner’s statements in his motion to recuse. Because the
statements in the plaintiff’s motion for recusal are baseless and false, his motion [dkt 7] is denied.
II.
The motion to vacate order of dismissal and permit payment of filing fee by installments
was filed within 28 days of the date judgment was entered in this action. It is therefore treated as
a motion to amend judgment pursuant to Rule 59 of the Federal Rules of Civil Procedure. “Rule
59(e) allows a court to amend a judgment only if the petitioner can demonstrate a manifest error
of law or present newly discovered evidence.” Heyde v. Pittenger, 633 F.3d 512, 521 (7th Cir.
2011) (internal quotation omitted); United States v. Resnick, 594 F.3d 562, 568 (7th Cir. 2010).
“A manifest error is not demonstrated by the disappointment of the losing party. It is the wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Oto v. Metropolitan Life
Ins. Co., 224 F.3d 601, 606 (7th Cir. 2000) (internal quotations omitted). “Relief under Rules 59(e)
and 60(b) are extraordinary remedies reserved for the exceptional case….” Foster v. DeLuca, 545
F.3d 582, 584 (7th Cir. 2008).

First, the plaintiff argues that it was improper for the Court to hold that the applicability of
the imminent danger exception to 28 U.S.C. § 1915(g)Bwhere a prisoner alleges that he “is under
imminent danger of serious physical injury” – is inapplicable to his complaint. He argues that the
risk of future injury to him from allegedly ongoing physical abuse, mail censorship, and acts
preventing him from exercising his religion are sufficient to satisfy the imminent danger exception.
But Isby’s allegations regarding the mail and his religious practices allege no serious physical
injury. Further, his allegations regarding “ongoing physical abuse” revolve around past allegations
of the use of pepper spray in 2014 and 2015 and allegations that he has been “manhandled” and
forced to wear leg shackles. The past allegations of being pepper sprayed are insufficient to show
a risk of future injury and the allegations of being roughly handled and shackled are not sufficient
to show an imminent risk of serious injury. The “imminent danger” exception therefore does not
apply.
Isby also argues that his case should not have been dismissed sua sponte. But when a
plaintiff who is aware that he is not entitled to proceed in forma pauperis files a motion seeking
leave to do so without acknowledging that barrier, dismissal is required. See Sloan v. Lesza, 181
F.3d 857, 859 (7th Cir. 1999)(“An effort to bamboozle the court by seeking permission to proceed
in forma pauperis after a federal judge has held that '1915(g) applies to a particular litigant will
lead to immediate termination of the suit.”).
Finally, Isby argues that there is not sufficient evidence to show that he has three strikes.
He states that the Court of Appeals ruling in Israel v. Brown, 14-2168 (Aug. 15, 2014), which
holds that Isby has three strikes is erroneous. But this Court is bound by the rulings of the Court
of Appeals and will not find an appellate ruling to be erroneous.

In short, Isby has identified no error in the ruling denying his motion to proceed in forma
pauperis and dismissing this action. Accordingly, the motion to alter or amend the judgment [dkt
8] is denied.
IT IS SO ORDERED.

Date: _________________
10/6/2016
Distribution:

________________________________
LARRY J. McKINNEY, JUDGE
United States District Court
Southern District of Indiana

AARON ISBY
892219
WABASH VALLEY - CF
WABASH VALLEY CORRECTIONAL FACILITY - Inmate Mail/Parcels
6908 S. Old US Hwy 41
P.O. Box 1111
CARLISLE, IN 47838