United States District Court, M.D. Florida, Fort Myers Division
ROBERT R. PRUNTY, Plaintiff,
AGENCY FOR HEALTHCARE ADMINISTRATION, AHCA, ELIZABETH DUDEK, Director, THE JACK NICKLAUS MIAMI CHILDREN'S HOSPITAL, JNMCH, THE SCHOOL DISTRICT OF DESOTO COUNTY & BOARD OF DIRECTORS, and ALEX SOTO, & Board of Directors, Defendants.
OPINION AND ORDER
E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on review of the file, and the
various motions filed by the pro se plaintiff. The
motions are resolved as set forth herein.
filed a Motion for Class Certification (Doc. #35) on July 17,
2017, seeking an appointment of class counsel and
certification of a class of African-American parents of
Desoto County Public School District children who filled out
IEP contracts over the past 5 years. Thereafter, plaintiff
filed a Motion to Strike Plaintiff's Own Previously Filed
Motion for Class Certification (Doc. #45) seeking to strike
the motion for his own failure to comply with Local Rule
3.01(g). The motion to strike will be granted, and the Motion
for Class Certification (Doc. #35) will be deemed stricken.
filed a new Motion Seeking Class Certification (Doc. #50) and
Brief in Support (Doc. #51) on July 28, 2017, this time
seeking to certify a class to be represented by
“assigned Counsel” while plaintiff can
“adequately represent himself”. It is well
established that a pro se plaintiff may plead his or
her own personal case, but cannot litigate on behalf of
others. See Bass v. Benton, 408 F.App'x 298,
298-99 (11th Cir. 2011); Timson v. Sampson, 518 F.3d
870, 873 (11th Cir. 2008) (citing 28 U.S.C. § 1654).
This necessarily extends to a pro se plaintiff's
ability to act as an adequate class representative. See,
e.g., Young v. Scott, No. 2:16-CV-581-FTM-99CM,
2016 WL 4441581, at *3 (M.D. Fla. Aug. 23, 2016) (collecting
cases); Bullock v. Strickland, No. 2:15-CV-638-MHT,
2017 WL 1029111, at *1 (M.D. Ala. Mar. 16, 2017) (collecting
cases). Therefore, the request for class certification must
construed, plaintiff's “Motion and Sworn Affidavit
Made Pursuant to 28 U.S.C. 144 et seq., 28 USC 455(a) &
(b) Due to Actual Bias or Prejudice, With the Court's
Impartiality Being Reasonably Questioned Concerning
“Bent of Mind” for the Agency for Health Care
Administration, (AHCA), Based Upon the Deeply Entrenched and
Longtime Financial Interests of United States District Judge
John E. Steele Financial Interests with Medicaid Business
Partners and Allies, Which Create an Obvious Appearance of
Impropriety and Partiality” (Doc. #48) seeks to
disqualify the undersigned based on a financial interest in
companies that invest directly or indirectly in Medicaid or
Medicare, and based on the appearance of impropriety because
the undersigned presided over a previous related case.
Defendants filed Responses. (Docs. ## 53-55.)
Bias or prejudice
request to disqualify is based on 28 U.S.C. § 144, which
provides that a party may file a “timely and sufficient
affidavit” that the presiding judge has a personal bias
or prejudice requiring reassignment. The statute sets forth
specific requirements for the affidavit:
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not
less than ten days before the beginning of the term at which
the proceeding is to be heard, or good cause shall be shown
for failure to file it within such time. A party may file
only one such affidavit in any case. It shall be accompanied
by a certificate of counsel of record stating that it is made
in good faith.
28 U.S.C. § 144. Therefore, after an affidavit is filed,
the Court must determine whether it was timely filed,
accompanied by a certificate of counsel of record, and
sufficient in statutory terms as set forth in § 144.
Parrish v. Bd. of Comm'rs of Alabama State Bar,
524 F.2d 98, 100 (5th Cir. 1975). The Court finds that the
affidavit fails on all three requirements.
previous case was originally dismissed without prejudice on
February 1, 2017, and reconsideration was denied on March 29,
2017. See 2:16-cv-577-FTM-29CM, Docs. ## 106, 123.
This case was initiated on May 30, 2017, however the motion
seeking disqualification was not filed until July 27, 2017.
Therefore, the motion is untimely. Further, even though
plaintiff is unrepresented, the certificate of counsel of
record is mandatory and the absence of the necessary
certificate is fatal. See Everson v. Liberty Mut. Assur.
Co., No. CIVA 105-CV-2459-RWS, 2008 WL 1766956, at *2
(N.D.Ga. Apr. 14, 2008) (noting cases where the absence of a
certificate proved fatal).
“[t]he alleged bias 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.” United States v. Meester, 762 F.2d
867, 884 (11th Cir. 1985) (citation omitted). It must also be
focused on the party, and a judge's comments on the lack
of evidence, or adverse rulings do not constitute bias.
Hamm v. Members of Bd. of Regents of State of Fla.,
708 F.2d 647, 651 (11th Cir. 1983). Judicial rulings alone
are almost never a valid basis for finding bias, and
“opinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a
basis. . . .” Liteky v. United States, 510
U.S. 540, 555 (1994). It is “normal and proper”
for a judge to preside over successive cases that may involve
the same party. Id. at 551. A review of the
affidavit reflects a reliance on past rulings in other cases,
and is insufficient to support a finding of bias under §
144. The request for disqualification is clearly untimely, it
lacks the necessary certificate of counsel, and is
insufficient. The motion will be denied under § 144.