UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PHILLIP BERRYMAN,

Plaintiff,

v. Case No. 14-12593

SCOTT FREED, R. VITTITOW, L. HON. AVERN COHN

ELKINS, EXELBY, N. CULBERSON, 

KEDRON, FAY TAYLOR, FRED FUNSTON,

RESZKE, ADRIANE NEFF, and

RUHL-ANDERSON,

Defendants.

____________________________________/

ORDER

DENYING PLAINTIFF’S OBJECTIONS UNDER FED. R. CIV. P. 60(b) (Doc. 46)

AND

DENYING PLAINTIFF’S MOTION TO RECUSE/DISQUALIFY (Doc. 47)

I. Introduction

This is a prisoner civil rights case. On July 1, 2014, Philip Berryman, Charles

Starling, and Daniel Mora, prisoners at the Saginaw Correctional Facility (SCF) at the

time of their suit,1

 filed this action under 42 U.S.C. § 1983, 1985, and 1988, essentially

claiming that defendants, employees of the Michigan Department of Corrections at SCF

conspired against them against to violate their civil rights by issuing false and/or

retaliatory misconduct tickets and destroying documents. The matter was referred to a

magistrate judge before whom defendants filed a motion to sever. (Doc. 30). The

magistrate judge recommended the motion be granted. (Doc. 35). The Court, over

1

Berryman is currently incarcerated at the Macomb Correctional Facility, Mora

remains incarcerated at SCF, and Starling has been release on parole.

2:14-cv-12593-AC-MKM Doc # 48 Filed 06/30/15 Pg 1 of 4 Pg ID 325
objections by Berryman and Starling, see Docs. 37, 38, 39, agreed and granted the

motion. Starling and Mora’s claims were then severed and they were dismissed from

the case. This left Berryman as the sole plaintiff. As such, the Court, as recommended

by the magistrate judge, directed him to pay the remainder of the filing fee. (Doc. 42).

Berryman then filed a motion for reconsideration of the Court’s ruling that he pay

the remainder of the filing fee. (Doc. 44) The Court granted in part and denied in part

the motion, stating that Berryman was correct that the filing fee for a prisoner case is

$350.00 but that Berryman is still responsible for the balance of the filing fee which was

$233.34 because neither of the severed plaintiffs, Starling or Mora, had paid any portion

of the filing fee and had been dismissed. (Doc. 45). 

Berryman then filed the following:

1. Objections to the Court’s order on reconsideration under Fed. R. Civ. P.

60(b)(6)

2. A motion to recuse/disqualify

For the reasons that follow, the motions are DENIED.

II. Objection - Rule 60(b)

Berryman moves for relief under Rule 60(b). Under this rule, a district court will

grant relief from a final judgment or order only upon a showing of one of the following

reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly

discovered evidence which by due diligence could not have been discovered in time to

move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated

intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the

judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior

2

2:14-cv-12593-AC-MKM Doc # 48 Filed 06/30/15 Pg 2 of 4 Pg ID 326
judgment upon which it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have prospective application; or (6) any other

reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b).

Berryman relies on 60(b)(6). He has not satisfied this standard. He continues to

argue that he should only be responsible for the partial share of the filing fee. He points

to prior orders in this case which contemplated fee sharing among the plaintiffs, arguing

that the Court must adhere to the fee sharing. He is mistaken. While there is authority

for a filing fee to be shared among prisoner plaintiffs, see In re Prison Litigation Reform

Act, 105 F.3d 1131 (6th Cir. 1997), Berryman is now the sole plaintiff. As the Court

explained in its order on reconsideration, there is authority for assessing the full filing

fee against Berryman where, as here, the claims of the other plaintiffs have been

severed and they have been dismissed from the case. This is appropriate because

permitting Berryman to proceed in this case with payment of only 1/3 of the filing fee

runs counter to the purpose behind the enactment of the Prison Litigation Reform Act

“to deter frivolous and vexatious prisoner civil litigation by exposing prisoners to the

same financial risks and considerations faced by other litigants.” In re Alea, 286 F.3d

378, 380 (6th Cir. 2001). As such, there is no reason to alter the Court’s conclusion

regarding Berryman’s obligation to pay the full filing fee under the circumstances.

III. Recusal/Disqualification

Berryman has also moved to recuse or disqualify the undersigned and the

magistrate judge. Disqualification under either 28 U.S.C. § 455 or § 144 must be

predicated “upon extrajudicial conduct rather than on judicial conduct,” and upon “a

personal bias as distinguished from judicial one, arising out of the judge's background

3

2:14-cv-12593-AC-MKM Doc # 48 Filed 06/30/15 Pg 3 of 4 Pg ID 327
and association and not from the judge's view of the law.” Id. at 1303-04 (quotations and

citations omitted). Section 455 provides that a judge must disqualify himself “in any

proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. §

455(a). It is well-settled that adverse rulings during the course of proceedings are not

by themselves sufficient to establish bias or prejudice which will disqualify the presiding

judge. See Knapp v. Kinsey, 232 F.2d 458, 466 (6th Cir. 1956); see also City of

Cleveland v. Krupansky, 619 F.2d 576, 578 (6th Cir. 1980).

Here, Berryman has not demonstrated any of the factors requiring disqualification

as provided by federal statute. Construed in the most liberal light, Berryman argues that

the undersigned and the magistrate judge must be disqualified because he disagrees

with the ruling on his payment of the filing fee. Berryman has not shown that the

undersigned or the magistrate judge harbors “any personal bias or prejudice concerning

a party, or personal knowledge of disputed evidentiary facts concerning the

proceeding....” 28 U.S.C. § 455(b)(1). Berryman has not referred to any extrajudicial

conduct arising out of the undersigned or the magistrate judge’s background and

associations. Therefore, Berryman has not presented a factual basis to support a

motion under Section 455. The motion is without merit.

SO ORDERED.

S/Avern Cohn 

AVERN COHN

Dated: June 30, 2015 UNITED STATES DISTRICT JUDGE

 Detroit, Michigan

4

2:14-cv-12593-AC-MKM Doc # 48 Filed 06/30/15 Pg 4 of 4 Pg ID 328