United States District Court, M.D. Georgia, Macon Division
ORDER AND RECOMMENDATION
STEPHEN HYLES, Magistrate Judge.
Plaintiff, Dexter Shaw, filed the instant Complaint on April 13, 2012, alleging numerous violations of his constitutional rights by the staff of the Georgia Diagnostic and Classification Prison (GD&CP) in Jackson, Georgia. On August 28, 2014, the Court granted in part and denied in part Defendants' motion to dismiss. (ECF No. 181.) The Court allowed Plaintiff's claim of punitive segregation in violation of the Eighth Amendment to proceed against Defendants Hall, Upton, and Humphrey, and dismissed all of Plaintiff's other claims. (Order 8, Aug. 28, 2014.) Plaintiff filed a motion for reconsideration arguing that his other claims should not have been dismissed. (ECF No. 183.) The Court denied that motion in a Text-only Order dated September 15, 2014. Plaintiff has now filed a number of motions reasserting the same arguments made in his objections to the undersigned's Report and Recommendation and in his motion for reconsideration and requesting to be relieved of the order. He has also filed a motion to compel discovery (ECF No. 192), and a motion for temporary restraining order or preliminary injunction (ECF No. 195). Defendants have filed a motion for permission to take Plaintiff's deposition. (ECF No. 193.) These motions are discussed in turn below.
I. Motion for Recusal
Plaintiff seeks to have the undersigned recuse from this case pursuant to 28 U.S.C. § 455(b)(1). (Mot. for Recusal, ECF No. 184.) That statute states that a judge "shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned... [or w]here he has a personal bias or prejudice concerning a party." 28 U.S.C. § 455. This section imposes a reasonable man standard in determining whether a judge should recuse himself. Whitehurst v. Wright, 592 F.2d 834, 838 (5th Cir. 1979). The general rule is that bias sufficient to disqualify a judge must stem from an extrajudicial source. United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). However, "there is an exception where such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party." Davis v. Bd. of School Comm'rs, 517 F.2d 1044, 1051 (5th Cir. 1975).
Plaintiff argues that certain circumstances occurring within this case show the undersigned's "bias/prejudice against Plaintiff" such that recusal is necessary. These are: (1) that the undersigned expressed "serious doubts about the likelihood of Plaintiff's ability to prove the allegations in his Complaint" in the Recommendation issued on May 19, 2014 (Report & Recommendation 33, ECF No. 168); and (2) that the undersigned allegedly did not give Plaintiff the opportunity to respond to Defendants' motion to dismiss (Mot. for Recusal 1-2).
As to the statement in the Recommendation, this is insufficient to make a reasonable person question the undersigned's impartiality. The undersigned was referring to the state of the record as it stood on May 19, 2014 and specifically allowed the claim in question to proceed. The statement in no way implies that the undersigned will not fairly and impartially consider all future contentions and decide the issues accordingly. As to Plaintiff's allegation that he was not given an opportunity to respond to the motion, Plaintiff was given notice of the motion to dismiss on the date it was filed and specifically given an opportunity to respond. No bias is shown by the Court ruling on the pending motion after Plaintiff's time to respond expired.
For the reasons explained above, Plaintiff has not pointed to any facts that would lead a reasonable person to question the impartiality of the undersigned. Plaintiff's motion for recusal is therefore denied.
II. Motions Related to the Court's August 28, 2014 Order
Plaintiff has filed a number of motions based upon his disagreement with the Court's August 28, 2014 Order granting in part and denying in part Defendants' motion to dismiss. He asks the Court to certify an issue for appeal (ECF Nos. 185, 188) and to stay discovery pending that appeal (ECF No. 191). Plaintiff has also filed two motions to be relieved of that Order under Rule 60(b) of the Federal Rules of Civil Procedure (ECF No. 186, 189), and a motion for corrective order (ECF No. 190).
A. Motion to Certify Issue for Appeal
Plaintiff asks the Court, pursuant to 28 U.S.C. § 1292, to certify an issue for interlocutory appeal to the Eleventh Circuit. (ECF No. 185.) Section 1292(b) states:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b). Plaintiff argues that "there is substantial ground for difference of opinion" regarding the Court's determination that the Eleventh Circuit's opinion in Smith v. Terry, 491 F.Appx. 81 (11th Cir. 2012) requires prisoner-plaintiffs to exhaust their administrative remedies on all claims prior to filing suit, including claims which arose after the filing of the suit. He requests certification of the question: "Whether Smith v. Terry  bars supplemental ...