Strong v. Werholtz et al

Filing 16

MEMORANDUM AND ORDER ENTERED: Plaintiff's affidavit 15 for disqualification is liberally construed as a motion for recusal and is denied. Plaintiff's motion 11 for reconsideration and reinstatement, motion 13 for order to stay court's order, and motion 14 for order compelling defendants to debit plaintiff's account are denied. Signed by Senior District Judge Sam A. Crow on 3/13/2013. (Mailed to pro se party Calvin L. Strong by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

CALVIN L. STRONG,
Plaintiff,
v.

CASE NO. 11-3090-SAC

ROGER WERHOLTZ, et al.,
Defendants.

MEMORANDUM AND ORDER

Plaintiff, a prisoner in state custody, brought this civil rights
action pursuant to 42 U.S.C. § 1983. The initial complaint was 13 pages
in length and had attachments of approximately 600 pages. The
complaint named 35 individual defendants and chronicled events
beginning in July 2003, following the revocation of plaintiff’s
conditional release.
The court conducted a preliminary review of the complaint
pursuant to 28 U.S.C. § 1915A and issued a memorandum and order
directing plaintiff to submit an initial partial filing fee and to
show cause why this matter should not be dismissed for reasons set
forth therein. (Doc. 7). Plaintiff was advised that any objection to
the initial partial filing fee must be submitted on or before the date
payment was due.
Thereafter, plaintiff filed a motion to alter and amend the
complaint (Doc. 8). The motion, which essentially is an amended
complaint on a form pleading, names 65 defendants and includes ten
counts.

However,

plaintiff

did

not

specifically

address

the

deficiencies identified by the court’s earlier order, nor did he

submit the partial filing fee or make any objection within the time
granted.

Accordingly,

the

court

dismissed

the

matter

without

prejudice (Doc. 9).
The matter now comes before the court on plaintiff’s motion for
reconsideration and reinstatement (Doc. 11), motion for order to stay
(Doc. 13), and motion for order to compel (Doc. 14). Also before the
court is plaintiff’s affidavit for disqualification (Doc. 15).
The affidavit for disqualification
Plaintiff’s affidavit cites 28 U.S.C. § 455(a), and the court
construes the affidavit as a motion for recusal based upon earlier
rulings in this matter.
Under 28 U.S.C. § 455(a), “Any justice, judge, or magistrate
judge of the United States shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned.” This
standard is objective, and the initial question is whether there is
a reasonable factual basis for calling into question the court’s
impartiality. United States v. Cooley, 1 F.3d 985, 993 (10th Cir.
1993)(citations omitted). Adverse rulings by a judge are not a
sufficient basis for disqualification. Glass v. Pfeffer, 849 F.2d
1261, 1268 (10th Cir. 1988)(citing United States v. Bray, 546 F.2d 851,
857 (10th Cir. 1976)).
The Tenth Circuit has cautioned that “section 455(a) must not
be so broadly construed that it becomes, in effect, presumptive, so
that recusal is mandated upon the merest unsubstantiated suggestion
of personal bias or prejudice.” Id.
Under case law in the Tenth Circuit, “[t]here is as much
obligation for a 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, 939 (10th Cir. 1987).
The court has carefully reviewed the affidavit and finds the
plaintiff has failed to present any plausible ground for recusal.
While much of the affidavit simply reflects the rulings of the court,
it also includes allegations, such as “the court joined with the
original defendants with willful and reckless disregards for the
plaintiff’s right” (Doc. 15, p. 2), that are entirely unsupported.
There is no reasonable basis for plaintiff’s motion, and the court
will not grant recusal.
Motion for reconsideration and reinstatement
Plaintiff’s motion for reconsideration and reinstatement seeks
relief from the dismissal of this matter on the ground that all of
his prison earnings are garnished each month, leaving him with no means
to pay the initial partial filing fee. He states that since May 2008,
he has had difficulty with state officials concerning the processing
of filing fees.
The Federal Rules of Civil Procedure do not specifically
recognize a motion for reconsideration. Van Skiver v. U.S., 952 F.2d
1241, 1243 (10th Cir. 1991). Such a motion, however, may be construed
as a motion to alter or amend judgment under Rule 59(e) or a motion
for relief from judgment under Rule 60.
Generally, three grounds may justify relief under such a motion,
namely, (1) an intervening change in the controlling law, (2) evidence
that was previously unavailable, and (3) the need to correct clear
error or prevent manifest injustice. Servants of Paraclete v. Does,
204 F.3d 1005, 1012 (10th Cir. 2000). Relief is appropriate when the
motion shows that the court “has misapprehended the facts, a party’s
position, or the controlling law.” Id.

A motion to alter or amend judgment must be filed within
twenty-eight days after the judgment is entered. See Fed.R.Civ.P.
59(e).

Plaintiff’s motion was filed within nine days of the entry

of judgment, and the court will construe the motion as filed pursuant
to Rule 59(e).
Also before the court are plaintiff’s motion to stay this matter
(Doc. 13) and a motion for an order compelling the defendants to debit
plaintiff’s account (Doc. 14). The court has examined these motions
together

and

has

again

reviewed

plaintiff’s

proposed

amended

complaint (Doc. 8). After consideration, the court finds these motions
should be denied.
First, the court finds the amendment proposed by the plaintiff
is futile for essentially the reasons set forth by the court in its
earlier order to show cause. Next, while the court recognizes that
the in forma pauperis statute provides that a prisoner shall not be
prohibited from bringing a civil action for the reason the prisoner
has no assets, see 28 U.S.C. § 1915(b)(4), even if plaintiff were
granted the in forma pauperis status he seeks, the matter would be
subject to summary dismissal. Finally, plaintiff has offered no
explanation for his failure to file a timely objection or any other
response to the court’s order directing him to pay an initial partial
filing fee. In sum, the court finds no intervening change in the law,
no evidence that was previously unavailable, nor any manifest
injustice that supports the plaintiff’s motions.
IT IS, THEREFORE, BY THE COURT ORDERED plaintiff’s affidavit for
disqualification (Doc. 15) is liberally construed as a motion for
recusal and is denied.
IT IS FURTHER ORDERED plaintiff’s motion for reconsideration and

reinstatement (Doc. 11), motion for order to stay court’s order (Doc.
13) and motion for order compelling defendants to debit plaintiff’s
account (Doc. 14) are denied.
A copy of this order shall be transmitted to the plaintiff.
IT IS SO ORDERED.
DATED:

This 13th day of March, 2013, at Topeka, Kansas.

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