Titus Henderson v. Rick Raemisch et al

Filing 16

ORDER denying plaintiff's 15 motion for recusal, denying plaintiff's 13 motion for preliminary injunction without prejudice, denying plaintiff's 14 motion for appointment of counsel without prejudice. Plaintiff will have until July 11, 2011 to submit a trust fund account statement covering the period beginning approximately September 23, 2008 and ending approximately March 23, 2009. Signed by District Judge Barbara B. Crabb on 6/20/2011. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - TITUS HENDERSON,
ORDER
Plaintiff,
09-cv-170-bbc
v.
RICK RAEMISCH, PETER HUIBREGTSE,
GARY BOUGHTON, ELLEN RAY,
TOM GOZINSKI, WELCOME ROSE,
AMY SMITH, HELLEN KENNEBECK,
KATHRYN ANDERSON, LARRY PRIMMER,
JANA JUERGENS, MONICA HORNER,
TRISHA LANSING, NANCY SALMON,
ELLEN RAY, C. BEERKIRCHER,
THOMAS TAYLOR, DAVID GARDNER,
LT. BOISEN, BRIAN KOOL, TIM HAINES,
CRAIG TOM, LT. HANFIELD, JOSH BROWN,
H. BROWN, W. BROWN, SGT. FURER,
CO NEIS, SGT. CARPENTER,
SGT. BOARDMAN, SGT. BLOYER,
COII JONES, COII JOHNSON, CO HULCE,
COII KARNOPP, R. STARKEY,
SGT. WALLACE, COII ECKT, COII EWING,
D. ESSER, M. SCULLION, JEROMEY CAYA,
JENNIFER SICKINGER, JOAN WATERMAN,
WENDY THOMPSON, SGT. TREFT,
SGT. COOK and JOHN DOES,
Defendants.
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This case was closed on April 29, 2009 when plaintiff Titus Henderson failed to pay
the $350 filing fee after I found him ineligible for in forma pauperis status because he had
“struck out” under 28 U.S.C. § 1915(g), and none of his claims satisfied the imminent
danger exception to § 1915(g). Plaintiff appealed the decision and, on February 16, 2011,
the Court of Appeals for the Seventh Circuit concluded that none of plaintiff’s previous
strikes were valid because plaintiff presented at least one non-frivolous claim in each of them.
Henderson v. Huibregtse, no. 08-3650, slip op. at 2 (7th Cir. Jan. 25, 2011) (citing Turley
v. Gaetz, 625 F.3d 1005, 1012 (7th Cir. 2010) ("[A] strike is incurred under § 1915(g) when
an inmate's case is dismissed in its entirety based on the grounds listed in § 1915(g)," rather
than when only one claim out of several is dismissed under § 1915(g).)) The court of appeals
remanded the case to this court to determine whether plaintiff may proceed in forma
pauperis with this case.
In the meantime, plaintiff has filed a handful of documents, one of which I must
consider before addressing the other issues. Plaintiff has filed a copy of a letter to the court
of

appeals

requesting

“the

necessary

forms

to

file

for

‘Judicial

Disciplinary

Proceeding/Removal’ of Judge Barbara B. Crabb.” I will construe this letter as a motion for
my recusal.
28 U.S.C. §§ 144 and 455 apply to motions for recusal and disqualification of judges.
Section 144 requires a federal judge to recuse herself for “personal bias or prejudice.”

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Section 455(a) requires a federal judge to “disqualify himself in any proceeding in which his
impartiality might reasonably be questioned,” and section 455(b)(1) provides that a judge
shall disqualify herself if she “has a personal bias or prejudice concerning a party.” Because
the phrase “personal bias or prejudice” found in § 144 mirrors the language of § 455(b), they
may be considered together. Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th Cir.
2000). In deciding whether a judge must disqualify herself under 28 U.S.C. § 455(b)(1), the
question is whether a reasonable person would be convinced the judge was biased. Hook v.
McDade, 89 F.3d 350, 355 (7th Cir. 1996) (internal quotation omitted). Recusal under §
455(b)(1) “is required only if actual bias or prejudice is proved by compelling evidence.” Id.
(citation and quotation omitted).
In his letter, plaintiff states that a prison staff member told him that defendant Ellen
Ray contacted me by telephone, and I told her that I was going to dismiss plaintiff’s case
“because it’s not in the proper form.” I will deny plaintiff’s motion for recusal for two
reasons. First, I never had this conversation with defendant Ray, and plaintiff should have
no reason to fear that I would have ex parte communications with his opponents. Second,
as plaintiff should be aware, I have not dismissed either of plaintiff’s pending cases. In fact,
this order will set the framework for how the present case will proceed.
Turning to the question whether plaintiff may proceed in forma pauperis, I cannot
decide this issue because plaintiff has not submitted a trust fund account statement, which

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is necessary to calculate an initial partial payment of the $350 filing fee. Because plaintiff's
complaint was submitted on March 23, 2009, his trust fund account statement should cover
the period beginning approximately September 23, 2008 and ending approximately March
23, 2009. In asking for a statement for this time period, I am assuming that prison officials
can readily access financial information for a few years ago. If this is not the case, plaintiff
should instead send a statement for the last six months and include an correspondence he
has received from prison officials denying his request for the older financial information.
Once plaintiff has submitted the necessary statement, I will calculate his initial partial
payment and advise him of the amount he will have to pay before the court can screen the
merits of his complaint under 28 U.S.C. § 1915(e)(2). Plaintiff should show a copy of this
order to prison officials to insure that they are aware they should send plaintiff’s trust fund
account statement to this court.
Next, plaintiff has filed a motion for preliminary injunctive relief and a motion for
appointment of counsel. I will deny the motion for preliminary injunctive relief because it
is premature and it does not comply with this court’s procedures to be followed on motions
for injunctive relief, such as that plaintiff must submit numbered proposed findings of fact
that cite to attached evidentiary materials.

Plaintiff is free to file a new motion for

preliminary injunctive relief after the court screens his claims and determines which may
proceed, but he will have to follow the court’s procedures. I will attach a copy of the court’s

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procedures to this order.
I will deny plaintiff’s motion for appointment of counsel because it is simply too early
to tell whether plaintiff will require the assistance of counsel; the court has not yet even
screened his complaint. Plaintiff is free to file a new motion for appointment of counsel, but
in order to be successful, he will first need to provide to the court the names and addresses
of at least three attorneys who have turned down his requests for representation.
Finally, I note that as in plaintiff’s other pending case, case no. 08-cv-390-bbc,
plaintiff’s complaint and supplement to the complaint are extremely long, and appear to
combine numerous unrelated claims against dozens of defendants. It is likely that if I
formally screened this complaint, I would have to break his allegations into several different
lawsuits, just as I did in case no. 08-cv-390-bbc. The court may not be able to consider every
concern plaintiff has in only one or two lawsuits. As plaintiff works on obtaining the proper
financial information to send to the court, he should consider which of his claims he really
wants to litigate in this court, and submit an amended complaint (or complaints) breaking
his allegations down into more manageable chunks containing related claims against a smaller
number of prison officials.

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ORDER
IT IS ORDERED that
1. Plaintiff Titus Henderson’s motion for my recusal, dkt. #15, is DENIED.
2. Plaintiff will have until July 11, 2011 to provide a trust fund account statement
covering the period beginning approximately September 23, 2008 and ending approximately
March 23, 2009, or an explanation of why he has not been able to do so. Should plaintiff
fail to submit this financial information by the deadline, the clerk of court is directed to close
the case.
3. Plaintiff’s motion for preliminary injunctive relief, dkt. #13, is DENIED without
prejudice to him filing another motion at a later date.
4. Plaintiff’s motion for appointment of counsel, dkt. #14, is DENIED without
prejudice to his filing another motion at a later date.
Entered this 20th day of June, 2011.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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