United States District Court, S.D. Indiana, Terre Haute Division
ENTRY ON POST-JUDGMENT MOTIONS
J. McKINNEY, JUDGE, United Stares District
motion to recuse presiding judge, the plaintiff alleges that
the undersigned is biased because he has ties with Department
of Correction Officials. The plaintiff also alleges that such
officials discussed this lawsuit with the undersigned before
it was dismissed.
28 U.S.C. 455(a), a federal judge must disqualify himself in
any proceeding in which his “impartiality might
reasonably be questioned.” Matter of Hatcher,
150 F.3d 631, 637 (7th Cir. 1998). “The standard in any
case for a § 455(a) recusal is whether the judge's
impartiality could be questioned by a reasonable,
well-informed observer.” Id. In Hook v.
McDade, 89 F.3d 350, 354 (7th Cir. 1996), the court
stated that § 455(a) “asks whether a reasonable
person perceives a significant risk that the judge will
resolve the case on a basis other than the merits. This is an
objective inquiry.” A judge is presumed to be
impartial. United States v. Baskes, 687 F.2d 165,
170 (7th Cir. 1981). This presumption is not overcome by
specious and unsupported factual allegations like the ones
made by the plaintiff. See In re United States, 158
F.3d 26, 35 (1st Cir. 1998) (“A party cannot cast
sinister aspersions, fail to provide a factual basis for
those aspersions, and then claim that the judge must
disqualify [him]self because the aspersions, ex proprio
vigore, create a cloud on [his] impartiality.”).
“If a party could force recusal of a judge by [false]
factual allegations, the result would be a virtual
‘open season' for recusal.” United States
v. Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986)
(citation omitted). Nor is recusal required on the basis of
“unsupported, irrational, or highly tenuous
speculation, ” In re United States, 666 F.2d
690, 694 (1st Cir. 1981), yet that is precisely the character
of the petitioner's statements in his motion to recuse.
Because the statements in the plaintiff's motion for
recusal are baseless and false, his motion [dkt 7] is denied.
motion to vacate order of dismissal and permit payment of
filing fee by installments was filed within 28 days of the
date judgment was entered in this action. It is therefore
treated as a motion to amend judgment pursuant to Rule 59 of
the Federal Rules of Civil Procedure. “Rule
59(e) allows a court to amend a judgment only if the
petitioner can demonstrate a manifest error of law or present
newly discovered evidence.” Heyde v.
Pittenger, 633 F.3d 512, 521 (7th Cir. 2011) (internal
quotation omitted); United States v. Resnick, 594
F.3d 562, 568 (7th Cir. 2010). “A manifest error is not
demonstrated by the disappointment of the losing party. It is
the wholesale disregard, misapplication, or failure to
recognize controlling precedent.” Oto v.
Metropolitan Life Ins. Co., 224 F.3d 601, 606 (7th Cir.
2000) (internal quotations omitted). “Relief under
Rules 59(e) and 60(b) are extraordinary remedies reserved for
the exceptional case….” Foster v.
DeLuca, 545 F.3d 582, 584 (7th Cir. 2008).
the plaintiff argues that it was improper for the Court to
hold that the applicability of the imminent danger exception
to 28 U.S.C. § 1915(g)Bwhere a prisoner alleges that he
“is under imminent danger of serious physical
injury” - is inapplicable to his complaint. He argues
that the risk of future injury to him from allegedly ongoing
physical abuse, mail censorship, and acts preventing him from
exercising his religion are sufficient to satisfy the
imminent danger exception. But Isby's allegations
regarding the mail and his religious practices allege no
serious physical injury. Further, his allegations regarding
“ongoing physical abuse” revolve around past
allegations of the use of pepper spray in 2014 and 2015 and
allegations that he has been “manhandled” and
forced to wear leg shackles. The past allegations of being
pepper sprayed are insufficient to show a risk of future
injury and the allegations of being roughly handled and
shackled are not sufficient to show an imminent risk of
serious injury. The “imminent danger” exception
therefore does not apply.
also argues that his case should not have been dismissed
sua sponte. But when a plaintiff who is aware that
he is not entitled to proceed in forma pauperis
files a motion seeking leave to do so without acknowledging
that barrier, dismissal is required. See Sloan v.
Lesza, 181 F.3d 857, 859 (7th Cir. 1999)(“An
effort to bamboozle the court by seeking permission to
proceed in forma pauperis after a federal judge has
held that '1915(g) applies to a particular litigant will
lead to immediate termination of the suit.”).
Isby argues that there is not sufficient evidence to show
that he has three strikes. He states that the Court of
Appeals ruling in Israel v. Brown, 14-2168 (Aug. 15,
2014), which holds that Isby has three strikes is erroneous.
But this Court is bound by the rulings of the Court of
Appeals and will not find an appellate ruling to be
short, Isby has identified no error in the ruling denying his
motion to proceed in forma pauperis and dismissing
this action. Accordingly, the motion ...