Prince v. Cha et al

Filing 110

Order and REPORT AND RECOMMENDATION re 101 MOTION to Amend/Correct 100 MOTION for Reconsideration re 99 Clerk's Judgment,, 98 Order on Motion for Reconsideration, Order on Motion for Summary Judgment, Order on Objection to Magis trate Judge Order,, Order on Motion to Strike, Order on filed by James J Prince, 100 MOTION for Reconsideration re 99 Clerk's Judgment,, 98 Order on Motion for Reconsideration, Order on Motion for Summary Judgment, Order on Objection to Magistrate Judge Order,, Order on Motion to Strike, Order on Report and Recommendations filed by James J Prince, 107 MOTION to Accept Attached Exhibits A and B as Evidence filed by James J Prince. The Court denies 104 Defendants' Motion to Strike and 107 Plaintiff's Motion to Accept Attached Exhibits. The Court denies as moot 105 Plaintiff's Motion asking for the status of previously filed motions. The Court RECOMMENDS that 100 Plaintiff's Motion for Relief f rom Judgment, 101 Plaintiff's Amended Motion for Relief from Judgment and 107 Plaintiff's request that the presiding judge recuse himself be DENIED. Objections to R&R due by 6/25/2015. Signed by Magistrate Judge Norah McCann King on 6/8/15. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES J. PRINCE,
Plaintiff,
vs.

Civil Action 2:13-cv-0035
Judge Watson
Magistrate Judge King

DR. CHA, et al.,
Defendants.
ORDER AND
REPORT AND RECOMMENDATION
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983, alleging that
defendants were deliberately indifferent to his serious medical needs
and retaliated against him for filing grievances.

This matter is

before the Court on several pending motions.
As way of background, the assigned district judge, the Honorable
Michael H. Watson, previously granted, over plaintiff’s objection,
defendants’ motion for summary judgment.
(“Opinion”).

Opinion and Order, ECF 98

Judgment in this case was entered on September 4, 2014.

Judgment, ECF 99 (“the judgment”).
Plaintiff has now moved for reconsideration and for relief from
that Opinion and from the judgment and asks that Judge Watson recuse
himself.

ECF 100, 101.

Defendants oppose plaintiff’s requests, ECF

102, and seek to strike plaintiff’s reply memorandum in support of his
motions, ECF 104.

Defendants contend that plaintiff’s reply, ECF 103,

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was due on or before October 22, 2014, but that plaintiff did not
serve his reply until October 31, 2014.
Ohio Civ. R. 7.2(a)(2)).

ECF 104, p. 2 (citing S.D.

Although there was a nine-day delay in

serving the reply, the record does not reflect that defendants will
suffer any prejudice if the Court considers this pro se plaintiff’s
untimely reply.

Moreover, the Court had not yet begun to consider

plaintiff’s motions when plaintiff filed the untimely reply.
Accordingly, under the circumstances of this particular case,
defendants’ motion to strike, ECF 104, is not well-taken and the Court
will exercise its discretion and consider plaintiff’s reply, ECF 103,
when resolving his motions to reconsider, ECF 100, 101.

Cf. Cummins

v. Liberty Life Assur. Co., No. 2:10-cv-00108, 2010 U.S. Dist. LEXIS
126474, at *5-7 (S.D. Ohio Nov. 19, 2010) (exercising discretion and
denying request to strike untimely memorandum where, inter alia, no
prejudice resulted and collecting cases where this Court has declined
to strike untimely memoranda).
Plaintiff has also filed a motion asking the Court to accept
certain exhibits in support of his motions for reconsideration.
107.

ECF

The exhibits are a partial docket sheet and order dated April

23, 2014, taken from Prince v. Turner, No. 3:13-cv-1051, filed in the
United States District Court for the Northern District of Ohio.
at 1, 6-7.

Id.

These exhibits relate to plaintiff’s petition for a writ

of habeas corpus and are irrelevant to the motions pending before this
Court.

Moreover, to the extent that plaintiff’s motion, ECF 107, may

be construed as a Rule 60(b) motion based on newly acquired evidence,
plaintiff has failed to explain why he could not acquire such evidence
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sooner.

See, e.g., JPMorgan Chase Bank, N.A. v. First Am. Title Ins.

Co., 750 F.3d 573, 584-85 (6th Cir. 2014) (requiring that a party
moving under Rule 60(b) demonstrate by clear and convincing evidence
that it exercised due diligence in obtaining the proffered information
and that the evidence is material and “clearly” would have produced a
different result).

For these reasons, plaintiff’s request that the

Court accept certain exhibits, ECF 107, is not well-taken.
Turning to the merits of his request for recusal, plaintiff
alleges that Judge Watson’s Opinion contains fraudulent factual
statements.

ECF 100, pp. 2-5; ECF 101, pp. 1-3; ECF 103, p. 6.

Plaintiff asks that Judge Watson recuse himself pursuant to Fed. R.
Civ. P. 63 and 28 U.S.C. § 144.

ECF 100, p. 5; ECF 103, p. 6.

Rule

63 provides that “[i]f a trial or hearing has been commenced and the
judge is unable to proceed, any other judge may proceed with it upon
certifying familiarity with the record and determining that the case
may be completed without prejudice to the parties.”
63.

Fed. R. Civ. P.

In short, Rule 63 addresses situations where, after the

commencement of a trial or a hearing, a judge is “unable to proceed.”
The Rule is simple inapplicable to this case, where no trial or
hearing has commenced.
However, a federal judge must recuse himself when a party “makes
and files a timely and sufficient affidavit that the judge before whom
the matter is pending, has a personal bias or prejudice either against
[her] or in favor of any adverse party. . . .”

28 U.S.C. § 144.

Plaintiff’s reply memorandum in support of his request for recusal,
ECF 103, is sworn under penalty of perjury.
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Construing his filing

liberally, the Court accepts this filing as plaintiff’s affidavit
under Section 144.

The bias or prejudice that mandates recusal,

however, must be wrongful or inappropriate, i.e., either relying on
knowledge acquired outside the proceedings or displaying deep-seated
and unequivocal antagonism that would render fair judgment impossible.
See, e.g., Liteky v. United States, 510 U.S. 540, 556 (1994).

In this

regard, judicial rulings alone almost never constitute a basis for
recusal.

Id.; Williams v. Anderson, 460 F.3d 789, 815 (6th Cir.

2006).
In the case presently before the Court, plaintiff alleges that
Judge Watson’s Opinion contains fraudulent factual statements and is
the result of judicial misconduct.

See generally ECF 100, 101, 103.

Plaintiff’s assertions, however, merely reflect his disagreement with
Judge Watson’s assessment of the record made in that ruling.

Those

statements do not constitute the deep-seated antagonism toward
plaintiff that would either render fair judgment impossible or require
recusal.
Plaintiff also seeks reconsideration of or relief from judgment
from the Order and judgment entered on September 4, 2014.
101, 103.

ECF 100,

In his reply, ECF 103, plaintiff clarifies that he seeks

relief under Fed. R. Civ. P. 60(b)(3), which provides in relevant part
that a district court may order relief from a final judgment or order
for “fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party[.]”

A party

moving under Rule 60(b)(3) must demonstrate “by clear and convincing
evidence that the district court’s judgment was obtained by fraud or
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misconduct.”

Crehore v. United States, No. 06-2110, 253 F. App’x 547,

549 (6th Cir. Nov. 5, 2007).
In the case presently before the Court, plaintiff concedes that
this rule applies to the conduct of a party to the litigation; he has
found no authority that applies the rule to the conduct of a presiding
judge.

See generally ECF 103.

Plaintiff nevertheless insists that

this rule entitles him to relief based upon the statements in Judge
Watson’s Order and the defendants’ later filings that relied on those
statements.

Id.

Plaintiff contends that this conduct amounts to

“Fraud on the court to deprive a litigant from a Jury Trial.”
1.

Plaintiff’s arguments are not well-taken.

Id. at

Although plaintiff

points to instances in which defendants relied on statements contained
in the Opinion, his arguments in this regard simply boil down to a
disagreement with Judge Watson’s assessment of the record as reflected
in the Opinion.

To the extent that plaintiff believes that the

Court’s Opinion and the judgment entered in this case are erroneous,
his recourse is to file an appeal.
In light of the foregoing, plaintiff’s request for a status of
his previously filed motions, ECF 105, is moot.
WHEREUPON, defendants’ motion to strike, ECF 104, and plaintiff’s
motion to accept attached exhibits, ECF 107, are DENIED and
plaintiff’s motion asking for the status of previously filed motions,
ECF 105, is DENIED as moot.

It is RECOMMENDED that plaintiff’s motion

for relief from judgment, ECF 100, plaintiff’s amended motion for
relief from judgment, ECF 101, and plaintiff’s request that the
presiding judge recuse himself, ECF 107, be DENIED.
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If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

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Response to objections

must be filed within fourteen (14) days after being served with a copy
thereof.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).

June 8, 2015

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

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