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Glisson v. Indiana Department of Correction

United States District Court, S.D. Indiana, Indianapolis Division

November 13, 2017

NICHOLAS GLISSON, Plaintiff,
v.
INDIANA DEPARTMENT OF CORRECTION, CORRECTIONAL MEDICAL SERVICES, INC., MALAKA G. HERMINA, MARY COMBS, Defendants.

          ENTRY ON MOTION FOR CHANGE OF JUDGE

          Hon. Jane Magnus-Stinson, Chief Judge

         This matter is before the Court on Plaintiff Estate of Nicholas Lee Glisson's (“the Estate”) Motion for Recusal (“Motion”). [Filing No. 123.] The Estate claims that, pursuant to 28 U.S.C. § 455(a), the presiding judge in this matter must recuse herself because of personal animus against the Estate's counsel (“Counsel”). Pursuant to 28 U.S.C. § 137, the presiding judge requested that the Chief Judge either review the Motion or reassign it to another judicial officer. [Filing No. 125.] The Chief Judge reassigned the Motion to herself. [Filing No. 127.] For the reasons stated below, the Court DENIES the Estate's Motion and remands this matter to the presiding judge.

         I.

         Background

         A. Procedural History

         The Estate filed this Complaint in Indiana state court on August 31, 2012. [Filing No. 1-1.] The Complaint was subsequently removed to federal court because of the Estate's Eighth Amendment claims and randomly assigned to the presiding judge on October 2, 2012. [Filing No. 1.]

         On June 4, 2014, the presiding judge granted in part Defendant Correctional Medical Services, Inc.'s (“CMS”) Motion for Summary Judgment (“Order”) as to all federal claims asserted against it and remanded the case to the Marion Superior Court. [Filing No. 92.]

         On March 2, 2015, following the presiding judge's denial of the Estate's Motion for Reconsideration, [Filing No. 100], the Estate filed a Notice of Appeal. [Filing No. 101.] The Seventh Circuit originally affirmed, but subsequently, sitting en banc, reversed and remanded the case with respect to the Estate's Monell claim. Glisson v. Ind. Dep't of Corrs., 849 F.3d 372 (7th Cir. 2017), cert. denied sub nom. Corr. Med. Servs., Inc. v. Glisson, No. 16-1406, ___ U.S. ___ (U.S. Oct. 2, 2017) (No. 16-1406).

         B. Motion for Recusal

         On October 30, 2017, the Estate filed the instant Motion, alleging that the presiding judge cannot impartially oversee the Estate's case due to personal bias against Counsel. [Filing No. 123.] In support of its Motion, the Estate alleges, without any supporting evidence, that the presiding judge “has directed condescending remarks at [Counsel] in front of juries many times.” [Filing No. 123 at 1.] The Estate also states, without citation, that “Counsel has reversed this court several times.” [Filing No. 123 at 1.] Finally, the Estate asserts that the presiding judge “has also presided over many cases prosecuted by [Counsel], …including a case in which [the presiding judge] recused herself.”

         With respect to this last assertion, the Estate attached a previous Motion for Change of Judge, [Filing No. 123-1], filed by Counsel, as well as the accompanying Entry on Plaintiff's Motion for Change of Judge (“Change of Judge Order”). [Filing No. 123-2.] In Counsel's Motion for Change of Judge, also filed pursuant to 28 U.S.C. § 455(a), Counsel asserted that the presiding judge was a “personal friend” of a defendant that was named both individually and in his official capacity as the Marion County Sheriff. [Filing No. 123-1 at 2.] The sheriff had previously served as United States Marshal in the Southern District of Indiana before he was elected sheriff. [Filing No. 123-1 at 1.] In that case, Counsel alleged, without record citation, that the sheriff “considers himself a friend of the sitting judge, [therefore] it appears that the plaintiff would not have an impartial review of the merits of his claims.” [Filing No. 123-1 at 2.]

         In the Change of Judge Order, entered on December 9, 2010, the presiding judge recused herself from the case, “but not for the reasons cited by Plaintiff.” [Filing No. 123-2 at 1 (emphasis in original).] The presiding judge noted that she had presided over numerous cases when the sheriff was a named party and “ruled against him, awarded damages against his office, and even held him in contempt.” [Filing No. 123-2 at 1.] The presiding judge ruled as follows:

The undersigned's relationship with [the sheriff], though longstanding, has been and remains professional and not personal. Nevertheless, the undersigned judge grants Plaintiff's motion because doing so will remove from the future conduct of this litigation any concerns about her ability to be fair and impartial and ease the mind of Plaintiff's counsel who has, on many occasions, expressed publicly his lack of confidence in said judge, giving rise to ...

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