Summer v. Cunningham et al

Filing 101

MEMORANDUM AND ORDER that Plaintiff's Motion for Reconsideration 88 is DENIED, plaintiff's Motion to Disqualify Judge 95 is DENIED, and plaintiff's Motions to Strike 96 , 97 , 98 , 99 , 100 are DENIED. Signed by District Judge Thomas A Varlan on 5/12/11. (c/m) (ABF)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
STANLEY LEE SUMMER,
Plaintiff,
v.
JERRY GLENN CUNNINGHAM, et al.,
Defendants.

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No.:

3:10-CV-169
(VARLAN/SHIRLEY)

MEMORANDUM OPINION AND ORDER
This civil action is before the Court on plaintiff Stanley Lee Summer’s Motion for
Reconsideration [Doc. 88], Motion to Disqualify Judge [Doc. 95], and five Motions to Strike
[Docs. 96, 97, 98, 99, 100], in which plaintiff requests that the Court strike the responses
filed by defendants to plaintiff’s motion for reconsideration. Defendants have responded in
opposition to plaintiff’s motion for reconsideration [Docs. 89, 90, 91, 92, 93]. No responses
have been filed to plaintiff’s motion to disqualify judge or plaintiff’s motions to strike. For
the reasons set forth herein, plaintiff’s motions will all be denied.
I.

Motions to Strike Defendants’ Responses
In each of these motions [Docs. 96, 97, 98, 99, 100], plaintiff has requested that the

Court strike defendants’ responses to plaintiff’s motion for reconsideration. While a request
to strike a pleading may be brought, pursuant to Rule 12(f) of the Federal Rules of Civil
Procedure, such a request is not the proper way to respond to a pleading. Rule 12(f) allows
the Court to strike from a pleading an insufficient defense or any redundant, immaterial,

impertinent, or scandalous matter. Fed. R. Civ. P. 12(f). Courts generally disfavor motions
to strike and such motions will be granted only sparingly and only when the purposes of
justice require. See Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822
(6th Cir. 1953).
In plaintiff’s motions to strike, plaintiff has not directed the Court to any valid reason
why defendants’ responses should be stricken from the record and has only reiterated his
arguments from his motion for reconsideration. The Court, however, recognizes that pro se
litigants are allowed a degree of latitude in their filings. See Bosewell v. Mayer, 169 F.3d
384, 387 (6th Cir. 1999). Accordingly, while plaintiff’s motions to strike [Docs. 96, 97, 98,
99, 100] will be DENIED, the Court will interpret the motions as reply briefs to defendants’
responses to plaintiff’s motion for reconsideration.
II.

Motion for Reconsideration
Plaintiff moves the Court for reconsideration of the memorandum opinion and order

(the “M&O”) dismissing plaintiff’s claims and closing this case [Docs. 86, 87]. As grounds
for the requested reconsideration, plaintiff asserts that the M&O was unlawful because it
failed to state any findings of fact or conclusions of law in violation of Rule 56 of the Federal
Rules of Civil Procedure. Plaintiff also asserts that the M&O erred in finding that attorney
Katherine Hamilton did not commit a fraud; erred in finding that defendants Joe Fillers,
Phillip and Donna Hayes, and Jerry Hall are private citizens; and erred in the Court’s
findings regarding several defendants’ immunity.

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Plaintiff has not stated the rule under which he brings his motion. The Court,
therefore, first assumes that plaintiff’s motion is being brought pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure. See Fed. R. Civ. P. 59(e). To prevail on a Rule 59(e)
motion, a party “must either clearly establish a manifest error of law or must present newly
discovered evidence” to the court. Roger Miller Music, Inc. v. Sony/ATV Publ’g, LLC, 477
F.3d 383, 395 (6th Cir. 2007). The party cannot use a motion to reconsider to raise new legal
arguments that could have been raised before a judgment was issued. Id. Here, plaintiff does
not point to newly discovered evidence as grounds for his Rule 59(e) motion and thus,
plaintiff must clearly establish that the Court made a manifest error of law in the challenged
M&O.
Plaintiff cannot meet this burden. In the M&O, the Court dismissed plaintiff’s claims
as to some defendants pursuant to motions to dismiss, and dismissed plaintiff’s claims as to
other defendants pursuant to motions for summary judgment.

In making those

determinations, the Court referenced case law from the U.S. Supreme Court and the U.S.
Court of Appeals for the Sixth Circuit in finding that defendants who were members of the
Blount County Sheriff’s Department were entitled to absolute immunity for plaintiff’s claims
against them and, even if they were not, those defendants were entitled to qualified immunity
because plaintiff had not established that they had violated a clearly established statutory or
constitutional right of which a reasonable person would have known [Doc. 86, pp. 8-14]. See
Bush v. Rauch, 38 F.3d 842, 847 (6th Cir. 1994) (discussing quasi-judicial immunity);
Everson v. Leis, 556 F.3d 484, 493-501 (6th Cir. 2009) (discussing qualified immunity). The
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Court also found defendants Jon Bock, Jerry Hall, and Joe Filler to be private parties and not
state actors for purposes of plaintiff’s § 1983 claims [Id., pp. 16-20]. See Tahf v. Proctor,
316 F.3d 584, 590 (6th Cir. 2003). Further, the Court found that plaintiff had failed to allege
sufficient facts to support his claims against these defendants. Plaintiff has cited no authority
or facts in his motion for reconsideration that would alter this determination. The Court also
found that plaintiff had failed to allege sufficient facts to support claims against defendants
Phillip and Donna Hayes because the complaint did “not state allegations or a cause of action
against” these defendants [Id., p. 19]. Plaintiff has not alleged any new facts or law that
would show this ruling to be in error. Finally, the Court once again rejects plaintiff’s
assertion that attorney Katherine Hamilton attempted a fraud on the Court. Upon plaintiff
bringing up this argument, the Court conducted the appropriate inquiry into attorneys
licensed to practice in Tennessee, using Ms. Hamilton’s first and last name as queries. Upon
that inquiry, the Court found Ms. Hamilton listed as a licensed attorney in Tennessee and
found that the Board of Professional Responsibility number given in her pleading was not
the correct number due to a typographical error.
In sum, plaintiff has not shown that the M&O contains a clear error of law or that the
Court’s decision was against the weight of the evidence. Plaintiff has also not pointed to any
newly discovered evidence or intervening change in controlling law and has not shown a

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need to prevent manifest injustice or improper conduct by counsel or the Court.
Accordingly, plaintiff’s motion for reconsideration pursuant to a Rule 59(e) analysis will be
DENIED.
Assuming plaintiff brought his motion for reconsideration pursuant to Rule 60(b) of
the Federal Rules of Civil Procedure, the Court finds that plaintiff cannot sustain his burden
under this rule as well. Rule 60(b) provides that a party may obtain relief from a final
judgment, order, or proceeding for the following reasons:
(1)

mistake, inadvertence, surprise, or excusable neglect;

(2)

newly discovered evidence that, with reasonable diligence,
could not have been discovered in time to move for a new trial
under Rule 59(b);

(3)

fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;

(4)

the judgment is void;

(5)

the judgment has been satisfied, released or discharged; it is
based on an earlier judgment that has been reversed or vacated;
or applying it prospectively is no longer equitable; or

(6)

any other reason that justifies relief.

Fed. R. Civ. P. 60(b). Broadly construing plaintiff’s motion, it appears that plaintiff seeks
relief pursuant to Rule 60(b)(3). The decision to grant relief under Rule 60(b)(3) rests in the
discretion of the district court. Good v. Ohio Edison Co., 149 F.3d 413, 423 (6th Cir.1998).
Under Rule 60(b)(3), “the Sixth Circuit requires a demonstration by the moving party,
supported by clear and convincing evidence, that one or more of the three kinds of

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misbehavior referred to in the rule occurred.”1 Jordan v. Paccar, Inc., 97 F.3d 1452 (Table),
1996 WL 528950, at *9 (6th Cir. 1996). The non-moving party then has the burden to
“demonstrate by clear and convincing evidence that the misbehavior which occurred had no
prejudicial effect on the outcome of the litigation.” Id.
Upon review of the M&O, the underlying briefs, plaintiff’s motion for
reconsideration, defendants’ responses, and the relevant law, the Court does not find that any
defendant or counsel for any defendant engaged in a misrepresentation, fraud, or other
misconduct worthy of Rule 60(b)(3) relief. Although plaintiff argues that Ms. Hamilton has
attempted to work a fraud, for the reasons given above, the Court has found no basis for this
allegation. Thus, having no “clear and convincing” evidence of fraud, misrepresentation, or
other misconduct in this case, plaintiff’s motion for reconsideration under a Rule 60(b)
analysis will also be DENIED.

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For the purpose of a Rule 60(b)(3) motion, the Sixth Circuit has held:
“Misrepresentation” can be interpreted as an affirmative
misstatement. “Fraud” can be interpreted as reaching deliberate
omissions when a response is required by law or when the nonmoving party has volunteered information that would be misleading
without the omitted material. And “other misconduct” can be
interpreted to reach questionable behavior affecting the fairness of
litigation other than statements or the failure to make statements.”

Jordan, 1996 WL 528950, at *6 (citations omitted). See also Info-Hold, Inc. v. Sound Merch., Inc.,
538 F.3d 448, 456 (6th Cir. 2009) (setting forth the definition of fraud for purposes of Rule 60(b)(3)
as “the knowing misrepresentation of a material fact, or concealment of the same when there is a
duty to disclose, done to induce another to act to his or her detriment”) (citations omitted).
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Regardless, the standard for Rule 60(b)(3) reveals that a motion for reconsideration
under this provision should be denied if the Court’s decision would not change in light of the
new evidence or as a result of the fraud, misrepresentation, or other misconduct. See Jordan,
1996 WL 528950, at *9. Such is the case here. The Court based its rulings in the M&O on
controlling case law addressing the arguments and issues raised in defendants’ motions to
dismiss and motions for summary judgment. After the Court’s review of the applicable law
and the facts of this case, in addition to the arguments and cases submitted by plaintiff in his
motion for reconsideration, the Court is satisfied that the decisions and rulings in the M&O
would not change.
Accordingly, and in light of plaintiff’s failure to cite controlling precedent in support
of his arguments, and in light of the Supreme Court and Sixth Circuit precedent already cited
by this Court, plaintiff’s motion for reconsideration [Doc. 88] of the Court’s previously-filed
M&O will be DENIED.
III.

Motion to Disqualify Judge.
“Any justice, judge, or magistrate judge of the United States shall disqualify himself

in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. §
455(a). Interpreting this statute, the Sixth Circuit has stated that “a judge must recuse
[himself] if a reasonable, objective person, knowing all of the circumstances, would have
questioned the judge’s impartiality” but a “judge need not recuse himself based on the
‘subjective view of a party’ no matter how strongly that view is held.” United States v.
Sammons, 918 F.2d 592, 599 (6th Cir. 1990) (citing Hughes v. United States, 899 F.2d 1495,
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1501 (6th Cir. 1990), cert. denied, 111 S. Ct. 508 (1990), rehearing denied, 111 S. Ct. 1027
(1991)). Furthermore, the Supreme Court has observed that bias that requires recusal must
be personal or extrajudicial. Liteky v. United States, 510 U.S. 540, 548 (1994); Sammons,
918 F.2d at 599. “Personal bias is prejudice that emanates from some source other than
participation in the proceedings or prior contact with related cases.” United States v. Nelson,
922 F.2d 311, 319-20 (6th Cir. 1990) (quotations omitted). The basis for recusal under §
455(a), therefore, cannot be a judge’s prior ruling.
Plaintiff has moved for disqualification of the undersigned on grounds of gross
incompetence and gross partiality. Plaintiff also seems to argue that the undersigned should
have recused himself because he rendered an opinion and “testified” in this case.
As an initial matter, the Court notes that plaintiff had not previously requested that the
undersigned recuse himself from this case, prior to the instant motion. Plaintiff did, however,
bring a similar motion in regard to the district judge assigned this case prior to the
undersigned [see Doc. 54]. That motion was denied as moot in light of the subsequent
reassigning of this case [see Docs. 58, 66]. As to plaintiff’s request, the Court notes that
plaintiff has given no specific example of incompetence, impartiality, or bias. Plaintiff has
also given no example or explanation for his contention that the undersigned improperly
“testified” as a witness. Accordingly, given the foregoing, the Court finds that the grounds
submitted by plaintiff as reasons for why this district judge should be disqualified or should
have recused himself are neither true, nor do they support disqualification or recusal. Finally,
plaintiff has given no reason for why a reasonable person would question this district judge’s
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ability to be impartial. Accordingly, and in light of the foregoing, plaintiff’s motion to
disqualify judge [Doc. 95] will be DENIED.
IV.

Conclusion
For the reasons given above, plaintiff’s Motion for Reconsideration [Doc. 88] is

DENIED, plaintiff’s Motion to Disqualify Judge [Doc. 95] is DENIED, and plaintiff’s
Motions to Strike [Docs. 96, 97, 98, 99, 100] are DENIED.
IT IS SO ORDERED.

s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE

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