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Prunty v. Agency For Healthcare Administration

United States District Court, M.D. Florida, Fort Myers Division

August 31, 2017

ROBERT R. PRUNTY, Plaintiff,
v.
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

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE.

         This 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.

         A. Class Certification

         Plaintiff 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.

         Plaintiff 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 be denied.

         B. Disqualification

         Liberally 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.)

         1. Bias or prejudice

         Plaintiff's 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)[1]. The Court finds that the affidavit fails on all three requirements.

         A 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).

         Generally, “[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.

         2. ...


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