Kobishop v. Perry et al

Filing 8

ORDER granting 7 Motion to Amend Judgment; denying 7 Motion to Change Venue and Judge. (cc: all counsel) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JEROME W. KOBISHOP,
Plaintiff,
v.

Case No. 16-C-0037

MICHAEL G. PERRY et al.,
Defendants.

ORDER AMENDING JUDGMENT

Plaintiff has filed a motion to amend the judgment in this case from a dismissal with prejudice
to a dismissal without prejudice, and he appears to also request a change of venue and judge. On
January 15, 2016, this Court denied Plaintiff’s motion for leave to proceed in forma pauperis
because his filings indicated he was not indigent. The Court also dismissed his case with prejudice
under 28 U.S.C. § 1915(e)(2)(B) because the complaint appeared to be frivolous and failed to state
a claim for relief. Since the dismissal, Plaintiff has paid the full filing fee and he indicates he has
sought assistance of counsel to re-plead.
Suits dismissed as frivolous normally cannot be re-filed, Gladney v. Pendleton Correctional
Facility, 302 F.3d 773, 775 (7th Cir. 2002), but in this case, upon further reflection, it would be
more accurate to characterize Plaintiff’s complaint as legally deficient (i.e. as failing to state a claim)
than as frivolous. It may well be frivolous also, but the complaint is so devoid of facts that it is
difficult to make any such determination. Plaintiff’s motion to amend is therefore GRANTED and
the Clerk is directed to amend the judgment to reflect that the dismissal is without prejudice. Any
amended complaint shall be filed within 30 days of the date of this order.

Plaintiff’s request to change venue and judge is DENIED. As grounds for the request
Plaintiff indicates that while in private practice in the 1980s, I served as counsel for one of the
defendants in the case, Michael G. Perry. Disqualification is required where a judge served as a
lawyer in the matter in controversy, 28 U.S.C. § 455(b)(2), but not because before taking the bench
a judge had a professional relationship with a party in an unrelated matter. Sphere Drake Ins. Ltd.
v. All American Life Ins. Co., 307 F.3d 617, 621–22 (7th Cir. 2002) (“[A] judge's former
representation of a litigant does not imply any need to disqualify under § 455(a) because “his
impartiality might reasonably be questioned.” Nothing in the Code of Conduct for federal judges
makes prior representation of a litigant a disqualifying event. The norm among new appointees to
the bench is that once two years pass, perhaps even earlier, a judge is free to sit in controversies
involving former clients.” (internal citations omitted)). I note that my representation of Mr. Perry
was some 30 years ago, and there has been no ongoing relationship.
SO ORDERED this 10th

day of February, 2016.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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