Akers v. Shute et al

Filing 61

MEMORANDUM AND ORDER ENTERED: Plaintiff's motions 55 & 59 to vacate all rulings and to vacate the date for payment of the appellate filing fee are denied. Signed by Senior District Judge Sam A. Crow on 1/17/2012. (Mailed to pro se party Montgomery Carl Akers by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MONTGOMERY CARL AKERS,
Plaintiff,
v.

CASE NO. 08-3106-SAC

MICHAEL SHUTE, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil action filed by a prisoner in federal
custody. On March 11, 2010, the court granted defendants’ motion to
dismiss,

or,

in

the

alternative,

for

summary

judgment.

The

plaintiff’s appeal was dismissed by the United States Court of
Appeals for the Tenth Circuit on May 5, 2011. In this order, the
court considers plaintiff’s motion to vacate all rulings by this
court (Doc. 55) and his motion to vacate the date for paying the
appellate filing fee (Doc. 59) and concludes both motions should be
denied.
Motion to vacate all rulings
Plaintiff alleges newly-discovered evidence shows that the
court had ex parte contact with defendants and with unnamed district
court

judges

and

magistrate

judges

in

Maine,

New

Hampshire,

Washington, D.C., and Nevada. He also alleges there is newlydiscovered evidence that this court had contacts with unnamed
members of The American-Israeli Political Affairs Committee. He
submits no exhibits in support of these allegation. Plaintiff seeks
an evidentiary hearing and asks for recusal.

The motion was filed more than 28 days after the dismissal of
this action. Because a motion to alter or amend a judgment must be
filed within 28 days from the entry of judgment, Fed. R. Civ. P.
59(e), the court liberally construes the present filing as a motion
pursuant to Fed. R. Civ. P. 60(b), which must be filed “within a
reasonable time.” Fed. R. Civ. P. 60(c)(1).
“Although a notice of appeal generally divests the district
court of jurisdiction, a district court does have the authority ‘to
consider on the merits and deny a 60(b) motion after a notice of
appeal, because the district court’s action is in furtherance of the
appeal.’”

U.S.

v.

Edmonson,

928

F.Supp.

1052,

1053

(D.Kan.

1996)(quoting Winchester v. U.S. Atty. for Southern Dist. Texas, 68
F.3d 947, 949 (5th Cir. 1995)). Relief under rule 60(b) is an
extraordinary remedy and is appropriate only where exceptional
circumstances are shown. Schmier v. McDonald’s LLC, 569 F.3d 1240,
1243 (10th Cir. 2009).
Plaintiff

offers

only

unsupported

assertions

of

ex

parte

contacts and fails to make an adequate showing that he is entitled
to relief. There is no basis to vacate any ruling in this matter.
Plaintiff’s motion to vacate also incorporates a request for
recusal. Pursuant to 28 U.S.C. § 455(a), a judge “shall disqualify
himself in any proceeding in which his impartiality might reasonably
be questioned.” However, § 455 does not require this court to accept
plaintiff’s bare allegations as true; rather,“the test is whether
a reasonable person, knowing all the relevant facts, would harbor
doubts about the judge’s impartiality.” Glass v. Pfeffer, 849 F.2d
2

1261, 1268 (10th Cir. 1988). The decision on whether recusal is
appropriate lies within the discretion of the judge, and “[t]here
is as much obligation for the judge not to recuse when there is no
occasion for him to do so as there is for him to do so when there
is.” Hinman v. Rogers, 831 F.2d 937, 938–39 (10th Cir.1987).
The plaintiff’s bare assertions are entirely unsupported and do
not persuade the court that recusal is warranted in this matter. The
court therefore will deny the request for recusal.
Motion to vacate date for payment of filing fees
Plaintiff seeks relief from the court’s order of April 19, 2011
(Doc. 54), denying him leave to proceed in forma pauperis and
directing him to pay the full appellate filing fee.

Plaintiff does

not challenge the applicability of the bar under 28 U.S.C. §1915(g),
which limits the ability to proceed in forma pauperis of a prisoner
who has filed three or more lawsuits or appeals in federal court
that have been dismissed as frivolous or for failing to state a
claim.
Rather, plaintiff responds to the order by alleging misconduct
by the court and counsel. These allegations are unsupported and do
not show plaintiff is entitled to relief from the order. Finally,
as

defendants

note,

the

appeal

has

been

dismissed,

and

the

plaintiff’s request to revisit the order concerning payment is now
moot.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s motions to
vacate all rulings (Doc. 55) and to vacate the date for payment of
the appellate filing fee (Doc. 59) are denied.
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Copies of this order shall be transmitted to the parties.
IT IS SO ORDERED.
DATED:

This 17th day of January, 2012, at Topeka, Kansas.

S/ Sam A. Crow
SAM A. CROW
U.S. Senior District Judge

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