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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JAMES J. PRINCE, 

 

 Plaintiff, 

vs. Civil Action 2:13-cv-0035 

 Judge Watson 

 Magistrate Judge King 

DR. CHA, et al., 

 Defendants. 

ORDER AND 

REPORT AND RECOMMENDATION

Plaintiff, a state inmate proceeding without the assistance of 

counsel, brings this action under 42 U.S.C. § 1983, alleging that 

defendants were deliberately indifferent to his serious medical needs 

and retaliated against him for filing grievances. This matter is 

before the Court on several pending motions. 

 As way of background, the assigned district judge, the Honorable 

Michael H. Watson, previously granted, over plaintiff’s objection, 

defendants’ motion for summary judgment. Opinion and Order, ECF 98 

(“Opinion”). Judgment in this case was entered on September 4, 2014. 

Judgment, ECF 99 (“the judgment”). 

Plaintiff has now moved for reconsideration and for relief from 

that Opinion and from the judgment and asks that Judge Watson recuse 

himself. ECF 100, 101. Defendants oppose plaintiff’s requests, ECF 

102, and seek to strike plaintiff’s reply memorandum in support of his 

motions, ECF 104. Defendants contend that plaintiff’s reply, ECF 103, 

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was due on or before October 22, 2014, but that plaintiff did not 

serve his reply until October 31, 2014. ECF 104, p. 2 (citing S.D. 

Ohio Civ. R. 7.2(a)(2)). Although there was a nine-day delay in 

serving the reply, the record does not reflect that defendants will 

suffer any prejudice if the Court considers this pro se plaintiff’s 

untimely reply. Moreover, the Court had not yet begun to consider 

plaintiff’s motions when plaintiff filed the untimely reply. 

Accordingly, under the circumstances of this particular case, 

defendants’ motion to strike, ECF 104, is not well-taken and the Court 

will exercise its discretion and consider plaintiff’s reply, ECF 103, 

when resolving his motions to reconsider, ECF 100, 101. Cf. Cummins 

v. Liberty Life Assur. Co., No. 2:10-cv-00108, 2010 U.S. Dist. LEXIS 

126474, at *5-7 (S.D. Ohio Nov. 19, 2010) (exercising discretion and 

denying request to strike untimely memorandum where, inter alia, no 

prejudice resulted and collecting cases where this Court has declined 

to strike untimely memoranda). 

Plaintiff has also filed a motion asking the Court to accept 

certain exhibits in support of his motions for reconsideration. ECF 

107. The exhibits are a partial docket sheet and order dated April 

23, 2014, taken from Prince v. Turner, No. 3:13-cv-1051, filed in the 

United States District Court for the Northern District of Ohio. Id. 

at 1, 6-7. These exhibits relate to plaintiff’s petition for a writ 

of habeas corpus and are irrelevant to the motions pending before this 

Court. Moreover, to the extent that plaintiff’s motion, ECF 107, may 

be construed as a Rule 60(b) motion based on newly acquired evidence, 

plaintiff has failed to explain why he could not acquire such evidence 

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sooner. See, e.g., JPMorgan Chase Bank, N.A. v. First Am. Title Ins. 

Co., 750 F.3d 573, 584-85 (6th Cir. 2014) (requiring that a party 

moving under Rule 60(b) demonstrate by clear and convincing evidence 

that it exercised due diligence in obtaining the proffered information 

and that the evidence is material and “clearly” would have produced a 

different result). For these reasons, plaintiff’s request that the 

Court accept certain exhibits, ECF 107, is not well-taken. 

Turning to the merits of his request for recusal, plaintiff 

alleges that Judge Watson’s Opinion contains fraudulent factual 

statements. ECF 100, pp. 2-5; ECF 101, pp. 1-3; ECF 103, p. 6. 

Plaintiff asks that Judge Watson recuse himself pursuant to Fed. R. 

Civ. P. 63 and 28 U.S.C. § 144. ECF 100, p. 5; ECF 103, p. 6. Rule 

63 provides that “[i]f a trial or hearing has been commenced and the 

judge is unable to proceed, any other judge may proceed with it upon 

certifying familiarity with the record and determining that the case 

may be completed without prejudice to the parties.” Fed. R. Civ. P. 

63. In short, Rule 63 addresses situations where, after the 

commencement of a trial or a hearing, a judge is “unable to proceed.” 

The Rule is simple inapplicable to this case, where no trial or 

hearing has commenced. 

However, a federal judge must recuse himself when a party “makes 

and files a timely and sufficient affidavit that the judge before whom 

the matter is pending, has a personal bias or prejudice either against 

[her] or in favor of any adverse party. . . .” 28 U.S.C. § 144. 

Plaintiff’s reply memorandum in support of his request for recusal, 

ECF 103, is sworn under penalty of perjury. Construing his filing 

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liberally, the Court accepts this filing as plaintiff’s affidavit 

under Section 144. The bias or prejudice that mandates recusal, 

however, must be wrongful or inappropriate, i.e., either relying on 

knowledge acquired outside the proceedings or displaying deep-seated 

and unequivocal antagonism that would render fair judgment impossible. 

See, e.g., Liteky v. United States, 510 U.S. 540, 556 (1994). In this 

regard, judicial rulings alone almost never constitute a basis for 

recusal. Id.; Williams v. Anderson, 460 F.3d 789, 815 (6th Cir. 

2006). 

 In the case presently before the Court, plaintiff alleges that 

Judge Watson’s Opinion contains fraudulent factual statements and is 

the result of judicial misconduct. See generally ECF 100, 101, 103. 

Plaintiff’s assertions, however, merely reflect his disagreement with 

Judge Watson’s assessment of the record made in that ruling. Those 

statements do not constitute the deep-seated antagonism toward 

plaintiff that would either render fair judgment impossible or require 

recusal. 

Plaintiff also seeks reconsideration of or relief from judgment 

from the Order and judgment entered on September 4, 2014. ECF 100, 

101, 103. In his reply, ECF 103, plaintiff clarifies that he seeks 

relief under Fed. R. Civ. P. 60(b)(3), which provides in relevant part 

that a district court may order relief from a final judgment or order 

for “fraud (whether previously called intrinsic or extrinsic), 

misrepresentation, or misconduct by an opposing party[.]” A party 

moving under Rule 60(b)(3) must demonstrate “by clear and convincing 

evidence that the district court’s judgment was obtained by fraud or 

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misconduct.” Crehore v. United States, No. 06-2110, 253 F. App’x 547, 

549 (6th Cir. Nov. 5, 2007). 

In the case presently before the Court, plaintiff concedes that 

this rule applies to the conduct of a party to the litigation; he has 

found no authority that applies the rule to the conduct of a presiding 

judge. See generally ECF 103. Plaintiff nevertheless insists that 

this rule entitles him to relief based upon the statements in Judge 

Watson’s Order and the defendants’ later filings that relied on those 

statements. Id. Plaintiff contends that this conduct amounts to 

“Fraud on the court to deprive a litigant from a Jury Trial.” Id. at 

1. Plaintiff’s arguments are not well-taken. Although plaintiff 

points to instances in which defendants relied on statements contained 

in the Opinion, his arguments in this regard simply boil down to a 

disagreement with Judge Watson’s assessment of the record as reflected 

in the Opinion. To the extent that plaintiff believes that the 

Court’s Opinion and the judgment entered in this case are erroneous, 

his recourse is to file an appeal. 

 In light of the foregoing, plaintiff’s request for a status of 

his previously filed motions, ECF 105, is moot. 

WHEREUPON, defendants’ motion to strike, ECF 104, and plaintiff’s 

motion to accept attached exhibits, ECF 107, are DENIED and 

plaintiff’s motion asking for the status of previously filed motions, 

ECF 105, is DENIED as moot. It is RECOMMENDED that plaintiff’s motion 

for relief from judgment, ECF 100, plaintiff’s amended motion for 

relief from judgment, ECF 101, and plaintiff’s request that the 

presiding judge recuse himself, ECF 107, be DENIED. 

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If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and of the right to appeal the 

decision of the District Court adopting the Report and Recommendation. 

See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 s/Norah McCann King 

 Norah McCann King 

 June 8, 2015 United States Magistrate Judge 

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