Greshamn v. Stewart et al
ORDER DENYING MOTION TO RECUSE [#91], REVOKING IN FORMA PAUPERIS STATUS AND DISMISSING ACTION. Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHAEL ISHMAEL GRESHAM,
Case No.: 13-10189
Honorable Gershwin A. Drain
DEPUTY DARREL M. STEWART,
ORDER DENYING MOTION TO RECUSE [#91], REVOKING IN FORMA
PAUPERIS STATUS AND DISMISSING ACTION
On May 7, 2013, this Court granted Plaintiff’s Application to Proceed In
Forma Pauperis, concluding that his claims fell within the “imminent danger”
exception to the three strikes provision set forth in 28 U.S.C. § 1915(g). On
October 13, 2016, the Court entered an Order for Plaintiff to Show Cause Why In
Forma Pauperis Status Should Not Be Revoked and Case Dismissed. The Court’s
recent review of the record, including Plaintiff’s status as a prolific filer of
frivolous actions, as well as his apparent mental health disorders, suggested that
the original grant of pauper status was erroneous and Plaintiff should not have been
allowed to proceed under the imminent danger exception.
Plaintiff filed a Response to the Court’s Order to Show Cause on November
22, 2016. The Government filed a Response to Plaintiff’s Response to the Order to
Show Cause on December 16, 2016.
Plaintiff has also brought a Motion to
Recuse, which was filed on November 23, 2016. For the reasons that follow, the
Court will deny Plaintiff’s Motion to Recuse, will revoke Plaintiff’s in forma
pauperis status and will dismiss this action without prejudice.
LAW & ANALYSIS
A. Motion to Recuse
As an initial matter, Plaintiff has moved to recuse the undersigned.
Disqualification under either 28 U.S.C. § 455 or § 144 must be predicated “upon
extrajudicial conduct rather than on judicial conduct,” and upon “a personal bias as
distinguished from judicial one, arising out of the judge’s background and
association and not from the judge’s view of the law.” Id. at 1303-04 (quotations
and citations omitted). Section 455 provides that a judge must disqualify himself
“in any proceeding in which his impartiality might reasonably be questioned.” 28
U.S.C. § 455(a).
It is well-settled that adverse rulings during the course of
proceedings are not themselves sufficient to establish bias or prejudice which will
disqualify the presiding judge. See Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir.
1956); see also City of Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir. 1980).
Plaintiff asserts that some of the Defendants in this matter told him that the
Michigan Department of Corrections paid the undersigned “$100,000.00 to find a
reason to dismiss [the] case[.]” Pg ID 1618. Plaintiff’s fantastical and delusional
accusations are completely false and have no merit. It is evident from a review of
Plaintiff’s Motion to Recuse that he is dissatisfied with this Court’s decision to
revisit the grant of pauper status in this matter. Disagreement with the decision of
the Court is not a proper basis upon which to grant a motion for recusal. See
Knapp, 232 F.2d at 466; see also Krupansky, 619 F.2d at 578. The Court will deny
Plaintiff’s Motion to Recuse.
B. Revocation of In Forma Pauperis Status
In order to proceed under the imminent danger exception under 28 U.S.C. §
1915(g), Plaintiff was required to allege that the threat or prison condition is “real
and proximate” and that the danger of serious physical injury exists at the time the
complaint is filed. Vandiver v. Vasbinder, 416 F. App’x 560, 562 (6th Cir. 2011).
This Court granted Plaintiff in forma pauperis status based on Plaintiff’s allegation
that Defendant Hudson had called Plaintiff a “snitch,” and he had been involved in
a physical altercation with another inmate as a result. However, the imminent
danger exception is inapplicable for assertions of past danger. See Pointer v.
Wilkinson, 502 F.3d 369, 371 n.1 (6th Cir. 2007); Rittner v. Kinder, 290 F. App’x
796, 797-98 (6th Cir. 2008) (citing Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th
Cir. 2003); Abdul-Akbar v. McKelvie, 239 F.3d 307, 313 (3d Cir. 2001).
Moreover, the record reveals that Plaintiff suffers from several mental health
disorders, which explains the fantastical and delusional nature of Plaintiff’s
allegations to this Court.
The record further shows that Plaintiff does not
comprehend that he suffers from disorders of the mind and frequently refuses
medication. Simply put, Plaintiff’s allegations of imminent danger were, and
continue to be, delusional and not based in reality.
This Court has the authority to deny a prisoner leave to proceed in forma
pauperis when the prisoner’s claims of imminent danger are “conclusory or
ridiculous” or are “clearly baseless” (i.e. are fantastic or delusional and rise to the
level of ‘irrational or wholly incredible).’” Rittner, 290 F. App’x at 798. Plaintiff
has failed to demonstrate to this Court that he was entitled to proceed under the
imminent danger exception under 28 U.S.C. § 1915(g), therefore the Court will
revoke his in forma pauperis status and dismiss this action. See McLeod v. Jones,
No. 4:15-cv-188, 2015 U.S. Dist. LEXIS 173634, *9 (N.D. Fla. Sept. 17, 2015)
(courts are permitted to “revoke previously granted in forma pauperis status if it
later becomes evident that the original IFP status should not have been granted.”)
For the reasons articulated above, Plaintiff’s Motion to Recuse [#91] is
DENIED. Plaintiff’s In Forma Pauperis status is HEREBY REVOKED. This
cause of action is DIMISSED WITHOUT PREJUDICE.
Dated: January 9, 2017
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 9, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
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