Saxton v. Harrison et al

Filing 6

MEMORANDUM AND ORDER Signed by Chief Judge Joseph H. McKinley, Jr on 11/6/2012 denying 5 Motion Appointment of Federal Judge. IT IS ORDERED that within 21 days from the date of entry of this Order, Plaintiff must complete a new application to pr oceed without prepayment of fees. Plaintiff is WARNED that his failure to file the new application within the time allotted will result in dismissal of action for failure to prosecute. The Clerk of the Court is directed to send the Plaintiff a new non-prisoner application to proceed without prepayment of filing fee. cc:counsel, Plaintiff, pro se. (PHB)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION

MITCHELL RAY SAXTON

PLAINTIFF

v.

CIVIL ACTION NO. 1:12CV-141-M

JUDGE MARTHA HARRISON et al.

DEFENDANTS

MEMORANDUM AND ORDER
By Order entered September 10, 2012, the Court ordered Plaintiff to complete a new
application to proceed without prepayment of fees, finding that Plaintiff’s application to proceed
without prepayment of fees lacked information needed for this Court to adequately determine
whether he meets the requirements for in forma pauperis status (DN 4). The Court warned that
Plaintiff’s failure to file the new application within 21 days would result in dismissal of the
action for failure to prosecute.
Plaintiff did not file a new application but filed a motion for appointment of a federal
judge from Jefferson County who does not know Defendants (DN 5). Claiming a conflict of
interest, he states that:
Bowling Green and Franklin are too close (20 miles) within traveling distance. My
Federal complaint involves defendants from both cities, and everybody knows each
other. I want my case [] to have a presiding Fedaral Judge from Louisville, Ky.
appointed to my case, so that I can have an IMPARTIAL JUDGE.
He continues that “I want my lawsuit to be followed through with no case tampering like in my
previous case. . . . my name was black-called in Simpson County because of how my case was
handled.”

In requesting appointment of another judge, Plaintiff necessarily is seeking recusal of the
undersigned. Motions for recusal are committed to the sound discretion of the district court
deciding the motion. See Youn v. Track, Inc., 324 F.3d 409, 422 (6th Cir. 2003). It is proper for
the challenged judge to rule on the motion for recusal. See United States v. Hatchett, No.
92-1065, 1992 WL 296865 (6th Cir. Oct. 15, 1992); see also Easley v. Univ. of Mich. Bd. of
Regents, 853 F.2d 1351, 1355-56 (6th Cir. 1988).
“A district court judge must recuse himself where a reasonable person with knowledge of
all the facts would conclude that the judge’s impartiality might reasonably be questioned. This
standard is objective and is not based on the subjective view of a party.” United States v. Dandy,
998 F.2d 1344, 1349 (6th Cir. 1993) (quoting United States v. Nelson, 922 F.2d 311, 319 (6th
Cir. 1990)) (internal quotation marks omitted); 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.”). Additionally, § 455(b)(1) requires a judge to
disqualify himself “[w]here he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding.” To demonstrate bias or
prejudice, the party seeking recusal must set out specific facts demonstrating a personal bias that
stems from an extrajudicial source. See Alexander v. Chicago Park Dist., 773 F.2d 850, 856 (7th
Cir. 1985).
Plaintiff fails to present specific facts showing any impartiality, bias, or prejudice on the
part of the undersigned. See In re Womack, 253 B.R. 245, 246 (Bankr. E.D. Ark. 2000)
(“Although the Court has a duty to recuse where any of [the § 455] factors exist, there is a
concomitant duty not to recuse on unsupported, irrational or tenuous speculation.”). Plaintiff

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states only that Defendants are from Bowling Green and Franklin and that “everybody knows
each other.” Such a broad, unsupported claim does not warrant recusal of the undersigned.
The Court advises that the instant action is the only action Plaintiff has filed in this Court.
Thus, his allegation of “case tampering like in my previous case” cannot be attributed to the
undersigned and warrants no further discussion.
IT IS THEREFORE ORDERED that the motion for appointment of a federal judge
from Jefferson County (DN 5) is DENIED.
The Court will provide Plaintiff with one more opportunity to comply with this Court’s
September 10, 2012, Order. Accordingly,
IT IS ORDERED that within 21 days from the date of entry of this Order, Plaintiff must
complete a new application to proceed without prepayment of fees. Plaintiff is WARNED that
his failure to file the new application within the time allotted will result in dismissal of the
action for failure to prosecute.
The Clerk of Court is directed to send Plaintiff a new non-prisoner application
to proceed without prepayment of filing fee.
Date:

November 6, 2012

cc:
Plaintiff, pro se
4414.005

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