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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRUNO CHOINIERE, #08346-027,

Plaintiff,

CASE NO. 2:09-CV-10166

v. HONORABLE VICTORIA A. ROBERTS

MANAGED HEALTH SERVICES, et al.,

Defendants.

___________________________________/

ORDER DENYING MOTIONS TO DISQUALIFY, FOR RELIEF FROM

SUMMARY DISMISSAL, AND FOR LEAVE TO AMEND.

Before the Court is Plaintiff’s motion seeking to disqualify the district judge in this case,

seeking relief from summary dismissal, and seeking leave to amend his complaint. The Court

has dismissed Plaintiff’s civil rights complaint for failure to state a claim upon which relief may

be granted under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971). The Court has also denied reconsideration under

Federal Rule of Civil Procedure 59(e) and Local Rule 7.1(g)(3) and denied relief from judgment

under Federal Rule of Civil Procedure 60(b). This matter is closed.

Recusal of a district judge is governed by 28 U.S.C. § 455 which, in relevant part,

provides that “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in

any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a);

see generally Liteky v. United States, 510 U.S. 540 (1994). This standard is objective and is not

based upon the subjective view of the party seeking recusal. United States v. Dandy, 998 F.3d

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1344, 1349 (6th Cir. 1993). Plaintiff alleges bias based upon the Court’s resolution of his civil

rights complaint. “[J]udicial rulings alone almost never constitute a valid basis for a bias or

partiality motion . . . unless they display a deep-seated favoritism or antagonism that would make

fair judgment impossible.” Liteky, 510 U.S. at 555. Plaintiff has pointed to nothing in the

Court’s handling of his case or the Court’s rulings which demonstrate such a deep-seated

antagonism. He has thus failed to establish that a reasonable person would find that bias exists

or to otherwise allege facts to support his motion for disqualification. See Burton v. Jones, 321

F.3d 569, 577 (6th Cir. 2003). Accordingly, Plaintiff’s motion for disqualification is DENIED.

Plaintiff is also not entitled to relief from judgment under Federal Rule of Civil

Procedure 60(b). Under that rule, a district court may 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

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). As discussed in the

Court’s previous orders denying Plaintiff’s requests for reconsideration/relief from judgment, his

civil rights complaint was properly dismissed for failure to state a claim upon which relief may

be granted. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Accordingly, Plaintiff’s

motion for relief from summary dismissal is DENIED.

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Lastly, the Court again notes that it may not permit Plaintiff to amend his original

complaint to defeat summary dismissal. See Baxter v. Rose, 305 F.3d 486, 488-89 (6th Cir.

2002) (citing McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997)); see also Clayton v.

United States Dep’t. of Justice, et al., 136 Fed. Appx. 840, 842 (6th Cir. 2005). To the extent

that Plaintiff seeks to bring claims against Judge Robert L. Miller, Jr. concerning the denial of

his § 2255 motion, he must file a new complaint in a court with proper jurisdiction. 

Accordingly, Plaintiff’s motion for leave to amend his complaint is DENIED.

This case is closed. Any further pleadings filed in this matter shall be stricken.

IT IS SO ORDERED.

s/Victoria A. Roberts 

Victoria A. Roberts

United States District Judge

Dated: March 18, 2009

The undersigned certifies that a copy of this

document was served on the attorneys of record

and Bruno Choiniere by electronic means or U.S.

Mail on March 18, 2009.

s/Linda Vertriest 

Deputy Clerk

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