Price #220572 v. Caruso et al

Filing 66

MEMORANDUM OPINION AND ORDER denying Plaintiff's objection, construed as an appeal 53 ; affirming the Magistrate Judge's Order of August 6, 2009 49 , and denying plaintiff's motion to disqualify the magistrate judge 53 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

C U R W O O D L. PRICE, P l a in tif f , F ile No. 1:09-CV-102 v. H O N . ROBERT HOLMES BELL P A T R IC IA CARUSO, et al., D e f e n d a n ts . / M E M O R A N D U M OPINION AND ORDER T h i s prisoner civil rights action is before the Court on Plaintiff's objection to the M a g is tra te Judge's ruling and motion for disqualification of the Magistrate Judge. (Dkt. No. 5 3 , Obj. & Mot.) O n August 6, 2009,1 the Magistrate Judge issued an order denying Plaintiff's motion f o r a preliminary ruling and/or necessary court order and his motion to proceed with a special re le v a n t matter (Dkt. Nos. 38, 46). (Dkt. No. 49, 08/06/2009 Order.) Plaintiff objects to the o rd e r and moves to have the Magistrate Judge disqualified and removed from this case. Because the August 6, 2009, order addresses non-dispositive matters, the Court will c o n s tru e Plaintiff's objection as an appeal from the order.

Plaintiff appeals the "order of August 8, 2009 (Dkt. #49)." There is no order dated A u g u s t 8, 2009, in Plaintiff's file. Docket number 49 is an order dated August 6, 2009. The C o u rt assumes that it is the August 6, 2009, order that Plaintiff is appealing.

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T h is Court's review of a magistrate judge's order on appeal is limited. See Massey v . City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993) ("When a magistrate judge determines a non-excepted, pending pretrial matter, the district court has the authority to `reconsider' the d e te rm in a tio n , but under a limited standard of review.") A magistrate judge's resolution of a nondispositive pretrial matter will be modified or set aside on appeal only if it is "clearly e rro n e o u s or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); W.D. Mich. L C iv R 72.3(a). The clearly erroneous standard does not entitle a reviewing court to reverse th e finding of the trier of fact simply because it would have weighed the evidence differently o r would have decided the case differently. Anderson v. Bessemer City, 470 U.S. 564, 573 (1 9 8 3 ). "Rather, a reviewing court must ask whether, based on the entire evidence, it is `left w ith the definite and firm conviction that a mistake has been committed.'" Easley v. C ro m a rtie , 532 U.S. 234, 242 (2001) (citing United States v. U.S. Gypsum Co., 333 U.S. 364, 3 9 5 (1948)). P la in tif f does not allege any errors of fact or law in the Magistrate Judge's rulings on h is motions. Instead, Plaintiff contends that the Magistrate Judge improperly referenced m a tters that were not in the pleadings. Specifically, Plaintiff complains that the Magistrate J u d g e made reference to the nature of Plaintiff's underlying felony convictions. Plaintiff c o n te n d s that this reference evidences the Magistrate Judge's bias and prejudice. Plaintiff's convictions are a matter of public record and are subject to judicial notice. F e d . R. Evid. 201. The Court agrees that the nature of Plaintiff's convictions was not

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re le v a n t to the resolution of his motion. Nevertheless, it does not appear that the nature of h is convictions affected the rulings on his motions because Plaintiff's motions were properly d e n ie d . The Magistrate Judge's order denying Plaintiff's motions was not clearly erroneous. P la in tif f has also moved for disqualification of the Magistrate Judge for bias and p re ju d ic e pursuant to 28 U.S.C. § 455(a), (b)(1). In support of this motion, Plaintiff relies o n the lack of a ruling on his prior appeal (Dkt. No. 35), the Magistrate Judge's reference to th e nature of Plaintiff's conviction, his denial of Plaintiff's motion to amend, and his d e sc rip tio n of Plaintiff's complaint as "unwieldy." Plaintiff's prior appeal has now been decided. (Dkt. No. 65, 12/09/2009 Order.) The tim in g of that ruling is not attributable to the Magistrate Judge. With respect to those actions attributable to the Magistrate Judge, the Court bears in m in d that "`judicial rulings alone almost never constitute a valid basis for a bias or partiality m o tio n .'" Wilson v. Parker, 515 F.3d 682, 701 (6th Cir. 2008) (quoting Liteky v. United S ta te s, 510 U.S. 540, 555 (1994)). "To show improper prejudice, a judge's comments must `disp lay a deep-seated favoritism or antagonism that would make fair judgment impossible.'" Id . (quoting Liteky, 510 U.S. at 555). Plaintiff has not come close to demonstrating the d e g re e of antagonism necessary for him to succeed in a claim of judicial bias. Accordingly, I T IS HEREBY ORDERED that Plaintiff's objection, construed as an appeal (Dkt. N o . 53), is DENIED.

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I T IS FURTHER ORDERED that the Magistrate Judge's order of August 6, 2009 ( D k t . No. 49) is AFFIRMED. I T IS FURTHER ORDERED that Plaintiff's motion to disqualify the Magistrate J u d g e (Dkt. No. 53) is DENIED.

Dated: December 9, 2009

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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