West v. Olens et al, No. 6:2016cv00038 - Document 18 (S.D. Ga. 2016)
Court Description: ORDER denying 16 Motion to Alter Judgment; denying as moot 17 Motion for TRO. Signed by Judge J. Randal Hall on 8/29/16. (cmr)
Download PDF
<![CDATA[
West v. Olens et al Doc. 18 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FOR THE GEORGIA STATESBORO DIVISION MARQUIS B. WEST, Plaintiff, CV v. 616-038 et al. , SAM OLENS, Defendants. ORDER Pending before alter or the Court amend judgment and motion for the reasons set forth below, I. Plaintiff Prison brought Plaintiff's pro se motion to are in is a state Reidsville, suit against recusal (doc. 16) . For these motions are DENIED. BACKGROUND prisoner Georgia. confined Plaintiff, Defendants on March at Georgia State proceeding pro 30, 2016. se, Plaintiff styled his complaint as an "Independent Action Pursuant to Fed. R. Civ. P. 60(d)(3)." institution of Proceed In this case, Forma (Doc. 1.) Contemporaneously with the Plaintiff filed a Motion for Leave to Pauperis (doc. 2), Motions for Temporary Restraining Order (docs. 3, 4), and a Motion for Judicial Notice of Adjudicated Facts On May 16, (doc. 2016, 7) . the United States recommended that Plaintiff's suit be dismissed. Magistrate (Doc. 12.) Judge The Dockets.Justia.com Magistrate Judge found that Plaintiff's action appeared to be an attempt to circumvent the three strikes provision of the Litigation Reform Act (28 U.S.C. Prison § 1915(g)),1 and that even if Plaintiffs action did not fall under the purview of said three strikes provision, 60(d)(3) claim. recommended order the be (Id. that denied merits or irreparable denied Plaintiff 2-4.) Plaintiff's as that he had not (Id. Motion to at shown a 4.) a temporary likelihood was The Leave plausible Magistrate for relief for state The motions injunctive injury. Plaintiff's Pauperis, at failed of necessary Magistrate to Proceed Judge Rule also restraining success to prevent Judge In on also Forma and preemptively recommended that Plaintiff be denied leave to appeal in forma pauperis should he request the same. (Id. at 4-5.) After conducting an independent and de novo review of the entire record, this Court overruled Plaintiff's objections2 and adopted the Magistrate Judge's Report and Recommendation as its 1 The Magistrate Judge found that Plaintiff had previously filed at least three civil actions or appeals under Section 1915 that had been dismissed for being frivolous or for failing to state a claim. See, e.g., West v. Magruder, No. 6:14-CV-055 (S.D. Ga. Sept. 25, 2014) (dismissed for failure to prepay filing fee under three strikes provision of PLRA); West v. Ga. Pep't of Corr., No. l:08-CV-382 (N.D. Ga. Mar. 7, 2008) (dismissed for failure to exhaust administrative remedies); West v. Higgins, No. 6:06-CV-83 (S.D. Ga. June 30, 2008) (appeal dismissed as frivolous); and West v. Warnock, No. 6:05-CV-47 (S.D. Ga Aug. 17, 2006) (appeal dismissed as frivolous). (Doc. 12, at 3.) The Magistrate Judge also found that Plaintiff could not claim the "imminent danger" exception to the filing fee requirement because he was not in imminent danger at the time he filed suit in this Court. (Id.) 2 Plaintiff astutely points out a scrivener's error in the Court's Order misidentifying Plaintiff's objections to the Magistrate Judge's Report and Recommendation as being docketed at Document 5 (as opposed to Document 13) . (Doc. 16, at 3-4.) 2 own opinion on August Plaintiff's Complaint, Restraining Judicial Order, 1, 2016. denied (Doc. Plaintiff's dismissed as Notice Plaintiff of Adjudicated leave to proceed closed the case. Plaintiff 14.) in moot Facts, forma The Court dismissed Motions for Plaintiff's and Temporary Motion preemptively pauperis on this case and (Id.) now also denied appeal, moves to alter or amend the Court's pursuant to Federal Rule of Civil Procedure 59(e). Plaintiff for requests recuse themselves show malicious bias because presently "[t]heir and prejudice against se inmate litigator." II. that the judges (Doc. Order 16.) assigned to rulings [Plaintiff] [. . .] as a pro (Id. ) Motion to Alter or Amend Judgment A party may seek to alter or amend a judgment in a civil case within twenty-eight days after the entry of the judgment. Fed. R. Civ. P. 59(e). Because reconsideration of a judgment after its entry is an extraordinary remedy which should be used sparingly, a movant must set forth facts or law of a strongly convincing nature decision. to Bostic v. induce the Astrue, No. at *1 (S.D. Ga. July 31, 2012). used "to evidence relitigate that could court to reverse l:12-CV-082, its prior 2012 WL 3113942, A Rule 59(e) motion may not be old matters, have been raise argument raised prior or present to the entry of judgment," as "the only grounds for granting a Rule 59(e) motion are newly-discovered fact." Arthur (quotations rehashing v. evidence King, 500 omitted). arguments or F.3d "Rule already manifest 1335, 59(e) 1343 is rejected a the Bostic, 686 (M.D. Here, Ga. has evidence or manifest Plaintiff the does Inc., or for for 3113942, 169 F.R.D. failed to demonstrate newly discovered errors of law or fact that would justify a Court not should amend or alter dispute that cases that were dismissed as state a claim. 2007) vehicle 2012 WL or 1996)). Plaintiff finding that law Cir. court at *1 (quoting Wendy's Int'l v. Nu-Cape Const., 680, of (11th not by refuting the court's prior decision." errors he has frivolous, its brought prior Order. at malicious, least three or failing to He has presented no additional evidence that he was in imminent danger at the time he filed his complaint so as to justify the waiver of prepayment of his filing fee. U.S.C. Cir. § 1915(g); Medberry v. 1999) ("[A] prisoner's Butler, 185 F.3d 1189, See 28 1193 (11th allegation that he faced imminent danger sometime in the past is an insufficient basis to allow him to proceed in forma pauperis pursuant to the imminent danger exception to additional 60(d)(3) F.2d statute."). evidence sufficient Nor to has state he a presented plausible any Rule claims, let alone evidence sufficient to entitle him to preliminary 825 the injunctive 281, 283-84 relief thereon. See Booker v. Dugger, (11th Cir. ("Where from 1987) relief a judgment is sought established averments by of for clear the fraud and existence on the court, convincing of fraud the fraud evidence. made on must be Conclusory information and belief and unaccompanied by a statement of clear and convincing probative facts which support such belief do not serve to raise the issue of the existence of Horton v. City of St. Augustine, Cir. 2001) drastic ("[A] remedy established the including a fraud." Fla., omitted)); 272 F.3d 1318, 1326 (11th preliminary injunction is an extraordinary and not to burden be granted unless of persuasion as to demonstration that the movant likelihood of success on the merits, Rather, (quotations the movant all four has a clearly elements" substantial (quotations omitted)). Plaintiff uses his Rule 59(e) motion to rehash his previously rejected arguments, refute the Court's reasoning, and blame the Court for allegedly failing to liberally construe his pro se pleadings. already heard, Both the Magistrate Judge and this Court have thoroughly considered, complaints that Plaintiff now raises. and rejected the very Because these complaints do not present newly-discovered evidence that would support a finding of imminent danger or fraud on the court or otherwise demonstrate clear error or manifest injustice in this Court's August 1, 2016 Order, the Court finds neither a factual or legal basis for altering or amending its decision in this case. III. Within Plaintiff the body includes of a Recusal a formal is his Motion request case recuse themselves. construed as Motion for Recusal that (Doc. motion to Alter the 16, for at Judgment, assigned to this This request has been recusal. sufficient a district affidavit pending has court that proceeding the a personal bias App! x Jones v. Under Section 144, a judge must recuse himself when to F. and 455. Cir. party 459 144 Land a Co., §§ Commonwealth 2012). Ins. judges 7.) governed by 28 U.S.C. Title or Amend "files judge before recusal party would convince 144, 455(a), impartiality 455(a). a might Section disinterested, underlying the moving a reasonable person that Christo v. Padgett, Section the 223 F.3d 1324, 1333 judge lay must reasonably 455(a) on § 144. must bias (11th timely and matter is be allege facts recusal himself 28 where Under if "his U.S.C. § "an objective, of informed recusal that actually exists." questioned." fully which "To warrant (11th Cir. 2000). disqualify requires observer grounds a whom the 28 U.S.C. § 810 or prejudice either against him or in favor of any adverse party." under 808, the was facts sought would entertain a significant doubt about the judge's impartiality." Parker 1988). v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Any doubts must be resolved in favor of recusal. States v. Kelly, 888 F.2d 732, 744 (11th Cir.1989). Cir. United With regard to recusal under Section 144, Plaintiff has not satisfied the relevant procedural requirements. 144. Even ignoring unsworn declaration is the procedural insufficient See 28 U.S.C. deficiency, as it allege judicial bias against Plaintiff, does § Plaintiff's not sufficiently but rather is simply a recitation of Plaintiff's disagreement with the assigned judges' rulings. See Jones, 459 F. App' x at 811 (11th Cir. 2012). "Such judicial rulings cannot serve as the basis for recusal or cast doubts on impartiality unless pervasive bias and prejudice." Grinnell Corp., 384 U.S. 563, [Plaintiff] establishes Id. ; see also United States v. 583 (1966) ("The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.") Similarly, because, recusal under Section as previously stated, 455 is case. Disqualification warranted Plaintiff bases his motion for recusal on his disagreement with the judges' this not "may not be prior rulings in predicated on the judgefs rulings in the instant case or in related cases." Deems v. C.I.R., Phillips v. Review of Cir.1981)). 426 F. App'x. Joint Legis. the State "Neither of a 839, Comm. 843 Cir. 2011) (citing on Performance and Expenditure Miss., trial (11th 637 judge!s F.2d 1014, comments 1020 on (5th lack of evidence, court rulings and counsel adverse to a party, constitute pervasive of Bd. of Regents of State of Fla., 1983) nor friction between the bias." Hamm v. 708 F.2d 647, 651 Members (11th Cir. (citations omitted). Because reasonable recusal Plaintiff doubts is as has to not put the Based on the any assigned not warranted in this IV. forth evidence judges' raising impartiality, case. CONCLUSION foregoing, Plaintiff's motion to alter or amend judgment and motion for recusal (doc. 16) are DENIED. Plaintiff Restraining has Order also regarding Plaintiff by members However, this Plaintiff's a new alleged Motion for retaliation Temporary taken against of the Georgia Department of Corrections. motion claims filed and was filed closed the after the case. Court Further, as dismissed set forth above, the Court has denied Plaintiff's motion to alter or amend its Order disposing of Plaintiff's claims. Accordingly, Plaintiff's pending Motion for Temporary Restraining Order (doc. 17) is DENIED AS MOOT. ORDER ENTERED at Augusta, August, Georgia, this ocr^ day of 2016. 3AL HALL [TED/STATES DISTRICT JUDGE CRN DISTRICT OF GEORGIA
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
