Alford v. Pike County Detention Center et al

Filing 83

ORDER denying 75 Motion for Recusal and denying 78 Motion to Strike. Signed by Magistrate Judge Michael T. Parker on January 19, 2017. (js)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY HINTON, JR.

PLAINTIFF

v.

CIVIL ACTION NO. 5:15-cv-77-DCB-MTP

PIKE COUNTY, ET AL.

DEFENDANTS
ORDER

THIS MATTER is before the Court on Plaintiff’s Motion to Reconsider Recusal [75] and
Motion to Strike [78]. Having considered the Motions, the record, and the applicable law, the
Court finds that the Motions [75] [78] should be DENIED.
Motion to Strike [78]
At the omnibus hearing, the Court directed Defendants to produce to Plaintiff copies of
any policies, procedures, or memoranda which were in effect during Plaintiff’s incarceration
regarding (1) the dissemination or distribution of inmate provisions; (2) a law library and/or
inmate legal assistance; and (3) the dissemination of soap to new inmates only. On November
16, 2016, Defendants provided discovery responses. See Notice [71]. In his Motion to Strike
[78], Plaintiff argues that the Court should strike the policies and procedures that were produced
by Defendants because they are undated and unsigned. According to Plaintiff, “[i]t is standard
policy procedure to date and sign policies that are in effect . . . .” The fact that the policies and
procedures produced by Defendants were undated and unsigned may form a basis for
questioning the probative value of these documents, but it does not require that the Court strike
them.1 Accordingly, Plaintiff’s Motion [78] will be denied.

1

The Court notes that Defendants’ discovery responses were not filed of record.
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Motion to Reconsider Recusal [75]
In his Motion [75], Plaintiff seeks the recusal of the undersigned.2 Plaintiff argues that
the undersigned has shown favoritism and that the facts of this case “would cause ‘any’ person
off the street to question the . . . magistrate’s impartiality.”
Title 28 U.S.C. § 455 governs recusal of federal judges. The recusal standard is an
objective one. “[T]he relevant inquiry is whether a reasonable man, were he to know all the
circumstances, would harbor doubts about the judge’s impartiality.” Trevino v. Johnson, 168
F.3d 173, 178 (5th Cir. 1999) (internal quotations and citation omitted). Recusal can be based on
extrajudicial factors such as family relationships or intrajudicial factors such as events occurring
in court proceedings. Liteky v. United States, 510 U.S. 540, 555 (1994).
Intrajudicial factors “do not constitute a basis for bias or partiality motion unless they
display a deep-seated favoritism or antagonism that would make fair judgment impossible.”
Litely, 510 U.S. at 555. However, “a motion for disqualification ordinarily may not be
predicated on the judge’s rulings . . . .” Phillips v. Joint Legislative Committee on Performance
& Expenditure Review, 637 F.2d 1014, 1020 (5th Cir. 1981). “Adverse judicial rulings will
support a claim of bias only if they reveal an opinion based on an extrajudicial source or if they
demonstrate such a high degree of antagonism as to make fair judgment impossible.” United
States v. Scroggins, 485 F.3d 824, 830 (5th Cir. 2007).
Plaintiff points to multiple events in this action in support of his Motion [75]. Plaintiff
complains that, at the omnibus hearing, the undersigned and defense counsel “exchanged very

Apparently, Plaintiff titled his Motion [75] as one to “reconsider recusal” because the Court
previously denied Plaintiff’s motion for recusal in another case pending before this Court, Civil
Action No. 5:16-cv-15-DCB-MTP. As Plaintiff has not previously filed a motion for recusal in
this action, the Court will not treat this Motion [75] as a motion for reconsideration under Fed. R.
Civ. P. 59 or 60.
2

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warm greeting including head nods and smiles.” According to Plaintiff, “[i]t was evident to all
that witnessed the display that there is an underlying connection” and “one can only speculate as
to whether the connection involves family, friends, or hunting fishing and lodge camp ties . . . .”
Plaintiff also complains about the Court’s “rapid” questioning during the hearing, which
included questions such as what is your intent, what do you expect to accomplish, and what is
your purpose. According to Plaintiff, these questions were inappropriate.
These complaints do not constitute a sufficient basis for recusal of the undersigned. The
undersigned’s exchange of greetings with defense counsel would not lead a reasonable person to
doubt the undersigned’s impartiality. See Allen v. Parkland School Dist., 230 Fed. App’x. 189,
193 (3rd Cir. 2007) (holding that a judge’s “friendly greeting of opposing counsel” would not
lead a reasonable person to question his impartiality); see also Schueller v. Wells Fargo & Co.,
559 Fed. App’x. 733, 738-39 (10th Cir. 2014). Plaintiff’s rank speculation regarding the
connections shared between the undersigned and defense counsel is insufficient to justify
recusal. See Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc., 690 F.2d 1157, 1167 (5th
Cir. 1982); see also Edmon v. Dallas County Sheriff’s Dept., 2002 WL 226343, at *1 (N.D. Tex.
Feb. 13, 2002) (“A judge, however, should not recuse himself based on unsupported or irrational
speculation.”). Additionally, the Court’s questioning of Plaintiff at the omnibus hearing
regarding the relief he is seeking was appropriate considering that the purpose of the hearing,
inter alia, was to screen Plaintiff’s claims. See Order [60]; see also 28 U.S.C. § 1915 and 1915A;
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
Plaintiff also complains about certain rulings made by the Court. Plaintiff points to the
fact that at the omnibus hearing, the Court found good cause to extend certain Defendants’
deadline to answer. Plaintiff also points to the fact that the undersigned entered a Report and

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Recommendation [54], recommending that Plaintiff’s Motion for Default Judgment [48] be
denied.3 Finally, Plaintiff complains that the undersigned dismissed his claim based on
Defendants’ failure to answer grievances and allowed Defendants to raise the defense of failure
to exhaust administrative remedies after the deadline to do so.
As previously mentioned, adverse or partially adverse rulings ordinarily will not justify
recusal. See Phillips, 637 F.2d at 1020; Scroggins, 485 F.3d at 830. The rulings referred to by
Plaintiff do not “reveal an opinion based on an extrajudicial source” or demonstrate any degree
of antagonism. See Scroggins, 485 F.3d at 830. Moreover, Plaintiff misconstrues the
undersigned’s ruling regarding his claims based on Defendants’ failure to answer grievances.
During the omnibus hearing, the undersigned explained to Plaintiff that, as a matter of law, his
allegations that Defendants failed to respond to his grievances do not amount to a constitutional
violation.4 The Court also instructed Plaintiff that if Defendants raised the issue of Plaintiff’s
failure to exhaust administrative remedies, he could assert his allegations regarding his
grievances in response. Thereafter, the Plaintiff stated that he no longer wished to pursue this
claim, and the undersigned entered a Report and Recommendation [66], recommending that
Plaintiff’s claim regarding Defendants’ failure to respond to grievances be dismissed.5

On October 3, 2016, the District Judge adopted the undersigned’s Report and Recommendation
[54] and denied Plaintiff’s Motion of Default Judgment [48]. See Order [62].
4
See Geiger v. Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005); Dehghani v. Vogelgesang, 226
Fed. App’x. 404, 406 (5th Cir. 2007).
5
In his Motion [75], Plaintiff takes issue with the fact that the undersigned described his
allegations as “Defendants failed to adequately respond to his grievances” when he actually
alleged that Defendants did not respond at all. This distinction is of no import. Plaintiff does not
have a federally protected liberty interest in a response to his grievances. See Geiger, 404 F.3d at
373-74; Dehghani, 226 Fed. App’x. at 406; Edmond v. Epps, 2014 WL 1050726, at *4 (S.D.
Miss. Mar. 17, 2014) (dismissing as indisputably meritless plaintiff’s claim that prison official
failed to respond to grievance).
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The undersigned did not grant Defendants leave to file a motion to dismiss for failure to
exhaust administrative remedies after the deadline set by Order [60], but simply explained to
Plaintiff that the Court would allow him to raise his allegations regarding the grievances in
response to any such motion filed by Defendants.
Accordingly, Plaintiff has presented no sufficient basis for recusal of the undersigned,
and his Motion [75] will be denied.
IT IS, THEREFORE, ORDERED that:
1. Plaintiff’s Motion to Reconsider Recusal [75] is DENIED and
2. Plaintiff’s Motion to Strike [78] is DENIED
SO ORDERED this the 19th day of January, 2017.
s/Michael T. Parker
UNITED STATES MAGISTRATE JUDGE

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