Lynn (ID 64377) v. McCurrie et al
ORDER denying 20 Motion for Recusal ; granting 22 Motion for Extension of Time to pay the filing fee. Deadline for submitting the $400 filing fee is extended to 8/10/17; denying 23 Motion for telephone access; denying 26 Motion for telephone access; denying 27 Motion for to pay fees in installments; denying 32 Motion to Alter or amend courts order. Signed by District Judge J. Thomas Marten on 8/2/17.Mailed to pro se party Patrick Lynn by regular mail (daw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PATRICK C. LYNN,
CASE NO. 17-3041-JTM-DJW
ANTHONY McCURRIE, et al.,
Plaintiff, Patrick C. Lynn, is a prisoner currently housed at El Dorado Correctional
Facility in El Dorado, Kansas (“EDCF”). At the time of filing, Plaintiff was incarcerated at the
Hutchinson Correctional Facility in Hutchinson, Kansas (“HCF”). Plaintiff filed this civil rights
action under 42 U.S.C. § 1983 against various KDOC staff members and Corizon employees
alleging “23 criminal batteries/excessive use of force in violation of Plaintiff’s 8th Amendment
rights that occurred between 3/18/15 through 5/11/16”; deliberate indifference to his lifethreatening medical condition; and retaliation. Plaintiff names ninety-seven defendants by name
and an additional fifteen John or Jane Doe defendants.
On July 17, 2017, the Court entered an Order (Doc. 19): finding that Plaintiff is subject
to the “three-strikes” provision under 28 U.S.C. § 1915(g); finding that Plaintiff failed to show
that he is in imminent danger of serious physical injury; denying Plaintiff’s motion to proceed in
forma pauperis (Doc. 3); and granting Plaintiff until July 31, 2017, to submit the $400.00 filing
fee. The Order also provides that “[i]f he fails to pay the full fee within the prescribed time, the
Complaint will be dismissed based upon Plaintiff’s failure to satisfy the statutory district court
filing fee required by 28 U.S.C. § 1914” and “[t]he failure to submit the fee by that date will
result in the dismissal of this matter without prejudice and without additional prior notice.”
(Doc. 19, at 5.)
The Court received a letter (Doc. 20) from Plaintiff addressed to Magistrate Judge Waxse
that the Court docketed as a motion to recuse. The letter states that Plaintiff “will followup
w/formal recusal motions” against Magistrate Judge Waxse and the undersigned, “but in the
meantime, [Plaintiff] request informally that both of you sanctimonious cretins simply recuse
(Doc. 20, at 1.)
To the extent that Plaintiff’s letter seeks recusal of the
undersigned, it is denied.
Plaintiff claims that the undersigned is biased and “complicit in the criminal abuses
ongoing against [Plaintiff].” These conclusory allegations lack any support and are completely
There are two statutes governing judicial recusal, 28 U.S.C. §§ 144 and 455. Burleson v.
Spring PCS Group, 123 F. App’x 957, 959 (10th Cir. 2005). For recusal under § 144, the
moving party must submit an affidavit showing bias and prejudice. Id. (citing Glass v. Pfeffer,
849 F.2d 1261, 1267 (10th Cir. 1988)). The bias and prejudice must be personal, extrajudicial,
and identified by “facts of time, place, persons, occasions, and circumstances.” Id. at 960
(quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir. 1987)). These facts will be accepted as
true, but they must be more than conclusions, rumors, beliefs, and opinions. Id. Here, Plaintiff’s
conclusory allegations are merely rumors, beliefs, and/or opinions. Without an affidavit showing
bias or prejudice and proper identification of events indicating a personal and extrajudicial bias,
Plaintiff does not support a request for recusal under 28 U.S.C. § 144.
Under 28 U.S.C. § 455(a) and (b)(1) a judge “shall disqualify himself in any proceeding
in which his impartiality might reasonably be questioned” or if “he has a personal bias or
prejudice concerning a party.” 28 U.S.C. § 455(a) and (b)(1). Section (b)(1) is subjective and
contains the “extrajudicial source” limitation. See Liteky v. United States, 510 U.S. 540 (1994).
Recusal may be appropriate “when a judge’s decisions, opinions, or remarks stem from an
extrajudicial source—a source outside the judicial proceedings.” United States v. Nickl, 427
F.3d 1286, 1298 (10th Cir. 2005) (citing Liteky, 510 U.S. at 554–55). Recusal is also necessary
when a judge’s actions or comments “reveal such a high degree of favoritism or antagonism as to
make fair judgment impossible.” Id. (quoting Liteky, 510 U.S. at 555).
Section 455(a) has a broader reach than subsection (b) and the standard is not subjective,
but rather objective. See Nichols v. Alley, 71 F.3d 347, 350 (10th Cir. 1995) (citing Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988) and Liteky, 510 U.S. at 548). The
factual allegations need not be taken as true, and the test is “whether a reasonable person,
knowing all the relevant facts, would harbor doubts about the judge’s impartiality.” Id. at 350–
51 (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)); Burleson, 123 F. App’x
at 960. A judge has a “‘continuing duty to ask himself what a reasonable person, knowing all of
the relevant facts, would think about his impartiality.’” United States v. Greenspan, 26 F.3d
1001, 1005 (10th Cir. 1994) (quoting United States v. Hines, 696 F.2d 722, 728 (10th Cir.
1982)). “The goal of section 455(a) is to avoid even the appearance of partiality.” Liljeberg, 486
U.S. at 860.
The initial inquiry—whether a reasonable factual basis exists for questioning the judge’s
impartiality—is limited to outward manifestations and the reasonable inferences to be drawn
from those manifestations. Nichols, 71 F.3d at 351 (citing Cooley, 1 F.3d at 993). “[T]he
judge’s actual state of mind, purity or heart, incorruptibility, or lack of partiality are not the
issue.” Id. (quoting Cooley, 1 F.3d at 993). “The trial judge must recuse himself when there is
the appearance of bias, regardless of whether there is actual bias.” Bryce v. Episcopal Church of
Colo., 289 F.3d 648, 659 (10th Cir. 2002) (citing Nichols, 71 F.3d at 350).
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.” Cooley, 1 F.3d at 993 (quoting Franks
v. Nimmo, 796 F.2d 1230, 1234 (10th Cir. 1986)). A judge has “as much obligation . . . not to
recuse when there is no occasion for him to do so as there is for him to do so when there is.”
David v. City & Cnty. of Denver, 101 F.3d 1344, 1351 (10th Cir. 1996) (quotation omitted);
Greenspan, 26 F.3d at 1005 (citation omitted). Judges have a duty to sit when there is no
legitimate reason to recuse. Bryce, 289 F.3d at 659; Nichols, 71 F.3d at 351. Courts must
exercise caution in considering motions for recusal in order to discourage their use for judge
shopping or delay. Nichols, 71 F.3d at 351 (noting that § 455(a) is not “intended to bestow veto
power over judges or to be used as a judge shopping device”); Cooley, 1 F.3d at 993 (noting that
Congress was concerned that § 455(a) might be abused as a judge-shopping device).
The Supreme Court has explained that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky, 510 U.S. at 555. When no extrajudicial
source is relied upon as a ground for recusal, “opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current proceedings, or of prior proceedings,
do not constitute a basis for a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.” Id.
The Court finds that no reasonable person would believe that the undersigned’s previous
rulings implicate the level of “deep-seated favoritism or antagonism” that would make recusal
proper. Knowing all of the relevant facts, no reasonable person could harbor doubts about the
undersigned’s impartiality. Because the undersigned has a duty to sit and hear this case where
there is no legitimate reason for recusal, Plaintiff’s request for recusal is denied.
Plaintiff has also filed a motion (Doc. 22) requesting a ten-day extension of time to pay
the filing fee in this case. The motion alleges delay due to his impending transfer, and that
unless the Court grants his motion for telephone access at Doc. 23,1 he will be forced to resort to
“snail mail” to contact family members for assistance if paying the filing fee. The Court will
grant the motion for extension of time, thereby mooting Plaintiff’s requests for telephone access.
Plaintiff has also filed a motion (Doc. 27) seeking to pay the $400 filing fee in monthly
installments of $100 per month. The court in one of Plaintiff’s prior cases noted that:
§ 1915(g) does not prevent a prisoner with three strikes from filing
a civil action. He or she is simply unable to enjoy the benefits of
proceeding IFP and instead must pay the full fee at the time of
filing. Plaintiff offers to make partial payments from his inmate
account to satisfy the fee. However, he is not entitled to pay by
installments unless his motion to proceed IFP is granted. It is only
when delaying the litigation until the fee is paid in full threatens
“imminent danger of serious physical injury” that the litigant is
granted IFP status in spite of his past abuse and allowed to pay his
filing fee obligations in installments.
Lynn v. Roberts, No. 11–3073–JAR, 2011 WL 3667171, n.6 (D. Kan. Aug. 22, 2011) (citation
omitted ). Plaintiff points to no legal authority for paying the filing fee in installments and such
request is denied.
Plaintiff has filed a motion to alter or amend the Court’s July 17, 2017 Order at Doc. 19,
pursuant to Fed. R. Civ. P. 59(e). The motion rehashes Plaintiff’s arguments regarding instances
of excessive force and states that “an additional supplemental complaint [will be] forthcoming
for events on 5-18-17 to 7-31-17 and names well over 120 named – personally involved named
(Doc. 32, at 2.)
Plaintiff alleges that he has met the standard for showing
Plaintiff also seeks an order granting telephone access in his Notice of Address Change and Motion for Orders at
Doc. 26. The request is likewise moot and therefore denied.
“imminent danger” in that defendants at LCF and EDCF routinely “display a maliciously
deliberate indifference to [his] serious medical condition & needs.” Id. at 5. Plaintiff also
reasserts his arguments for the undersigned to recuse. Lastly, Plaintiff asks the Court to vacate
its prior ruling and to hold an evidentiary hearing prior to altering and amending the ruling. Id.
at 9. On the same date that Plaintiff filed his motion to alter or amend, he also filed a Notice of
Appeal (Doc. 33), seeking to appeal the Court’s July 17, 2017 Order as well as any ruling by the
Court on his motion to alter or amend.
A motion to alter or amend judgment pursuant to Rule 59(e) may be granted only if the
moving party can establish: (1) an intervening change in the controlling law; (2) the availability
of new evidence that could not have been obtained previously through the exercise of due
diligence; or (3) the need to correct clear error or prevent manifest injustice. Servants of the
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). A motion under Rule 59(e) is not to be
used to rehash arguments that have been addressed or to present supporting facts that could have
been presented in earlier filings.
Reconsideration of a judgment after its entry is an
extraordinary remedy that should be used sparingly. See Templet v. HydroChem, Inc., 367 F.3d
473, 479 (5th Cir. 2004); Allender v. Raytheon Aircraft Co., 439 F.3d 1236, 1242 (10th Cir.
2006); Zucker v. City of Farmington Hills, 643 F. App’x 555, 562 (6th Cir. 2016) (relief under
R. 59(e) is rare).
Plaintiff has failed to show an intervening change in the controlling law, the availability
of new evidence, or the need to correct clear error or prevent manifest injustice. Plaintiff does
not meet the exacting standard for relief under Fed. R. Civ. P. 59(e). In sum, Plaintiff has failed
to meet the standard required for this Court to alter or amend its July 17, 2017 Order, and that
ruling stands. The Court does, however, grant Plaintiff’s request to extend the Order’s deadline
for submitting the filing fee to August 10, 2017.
IT IS THEREFORE ORDERED BY THE COURT that to the extent Plaintiff’s
request at Doc. 20 seeks recusal of the undersigned, such request is denied.
IT IS FURTHER ORDERED that Plaintiff’s motion (Doc. 22) requesting a ten-day
extension of time to pay the filing fee in this case is granted. The deadline for submitting the
$400 filing fee is extended to August 10, 2017. The failure to submit the fee by that date will
result in the dismissal of this matter without prejudice and without additional prior notice.
IT IS FURTHER ORDERED that Plaintiff’s requests (Docs. 23, 26) for telephone
access are denied.
IT IS FURTHER ORDERED that Plaintiff’s motion (Doc. 27) seeking to pay the $400
filing fee in monthly installments of $100 per month is denied.
IT IS FURTHER ORDERED that Plaintiff’s motion pursuant to Fed. R. Civ. P. 59(e)
to alter or amend the Court’s July 17, 2017 Order at Doc. 19 (Doc. 32) is denied.
IT IS SO ORDERED.
Dated on this 2nd day of August, 2017, in Wichita, Kansas.
s/ J. Thomas Marten
J. THOMAS MARTEN
U. S. District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?