United States District Court, W.D. Virginia, Roanoke Division
K. MOON UNITED STATES DISTRICT JUDGE
closed matter is before me on post-judgment motions from the
plaintiff, Allen Lee Godfrey, seeking free copies of the
civil trial transcript; discovery and a forensic examination
of all audio-visual footage involved in this civil case and
his related, state court criminal proceedings; and
appointment of counsel. Godfrey states that he is entitled to
the requested items and services "in Anticipation of
Rule 60B Motion and State and/or Federal Habeas Corpus
Proceedings." Godfrey also contends that as presiding
judge, I "assisted the defense" during the trial
and, for that reason, another judge should decide
Godfrey's pending motions. Finding no merit to any of
Godfrey's motions, I must deny them.
a Virginia inmate proceeding pro se, filed and
prosecuted this civil rights action under 42 U.S.C. §
1983. He maintained, among other things, that police officers
had used excessive force against him during his arrest in a
Kroger parking lot on December 30-31, 2011. In January 2015,
I denied defendants' motions for summary judgment on
Godfrey's Fourth Amendment claims of excessive force and
bystander liability, and the matter proceeded to a jury trial
in July 2015. On the claims presented, the jury found in
favor of Defendants Faulkner, McNiff, Loureiro, Ratcliffe,
and Anderson. Pursuant to the jury's verdict, I entered
judgment for these defendants on August 3, 2015. Godfrey did
not note an appeal from this judgment. See Fed. R.
App. P. 4(a)(1)(A) (setting 30 days to note appeal from civil
judgment). Godfrey signed and dated his current motions on
April 11, 2016.
first address Godfrey's contention that another judge
should rule on his motions because I have allegedly expressed
bias against him. I construe this contention as a request for
recusal. A judge must recuse himself when "he has a
personal bias or prejudice concerning a party." 28
U.S.C. § 455(b)(1). To disqualify a judge from
continuing to preside, the "bias or prejudice must, as a
general matter, stem from 'a source outside the judicial
proceeding at hand.'" Belue v. Leventhal,
640 F.3d 567, 572 (4th Cir. 2011) (quoting Liteky v.
United States, 510 U.S. 540, 545 (1994)).
"[J]udicial rulings 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' almost 'never constitute a valid basis
for a bias or partiality motion, '" id. at
573 (quoting Liteky, 510 U.S. at 555),
'"unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible,
'" United States v. Lentz, 524 F.3d 501,
530 (4th Cir. 2008) (quoting Liteky, 510 U.S. at
555). "Likewise, judicial remarks that are 'critical
or disapproving of, or even hostile to, counsel, the parties,
or their cases, ordinarily do not support a bias or
partiality challenge.'" Belue, 640 F.3d at
573 (quoting Liteky, 510 U.S. at 555).
no personal bias or prejudice against Godfrey, and indeed, I
have no personal knowledge of him outside the proceedings of
this case. Moreover, Godfrey's motion fails to present
any particular ruling or statement I made during the trial on
which he bases his bald allegation that I harbored or
"displayed] a deep-seated favoritism or antagonism"
toward him or any of the witnesses, so as to suggest I did
not decide the issues with impartiality, based on the law.
Accordingly, I must deny Godfrey's request that I recuse
myself from ruling on his motions.
his motions themselves, I must deny them because this case is
closed. Godfrey now contends, based on various previously and
newly stated allegations, that not all video footage
available was produced to him during discovery in the civil
proceedings. He also asserts broadly that defense counsel did
not comply with discovery rules and orders and that
defendants committed perjury that would be exposed through a
forensic examination of the time signatures on all video
footage from both his criminal and civil proceedings.
fails to demonstrate, however, that he could not have raised
these issues before or during trial. If not satisfied with
the court's rulings on these issues, he could then have
pursued an appeal. Godfrey forfeited this opportunity for
review, however, when he failed to file an appeal within the
time allotted by law. See Fed. R. App. P. 4(a)
(setting 30 days from entry of civil judgment to note
appeal). Any appeal he pursued at this point would be
dismissed as untimely, without any review of substantive
matters. Godfrey cannot resurrect appeal issues, or seek
discovery or counsel, merely by suggesting an
"anticipated" motion for reconsideration under Rule
60(b). Moreover, while he may, in the future, file a petition
or a writ of habeas corpus under 28 U.S.C. § 2254, with
regard to the state court criminal proceedings, no such
habeas proceeding is currently pending. In any event, any
motion for discovery or appointment of counsel related to
possible habeas claims is not properly raised or addressed in
this fully closed civil action.
I find no ground to grant Godfrey's motion for a
transcript of the civil jury trial at government expense,
based merely on his in forma pauperis status.
"The in forma pauperis statute, 28 U.S.C.
§ 1915, permits the waiver of prepayment of fees and
costs for in forma pauperis litigants, see
28 U.S.C. § 1915(a), and allows for payment by the
United States of the expenses of ‘printing the record
on appeal in any civil or criminal case, if such printing is
required by the appellate court, ' and of
‘preparing a transcript of proceedings before a United
States magistrate in any civil or criminal case, if such a
transcript is required by the district court.'"
Tabron v. Grace, 6 F.3d 147, 158-59 (3d Cir. 1993)
(quoting 28 U.S.C. § 1915(c)). For appeal purposes, the
court will grant a civil litigant a transcript at government
expense only if court finds that his pending appeal "is
not frivolous (but presents a substantial question)."
See 28 U.S.C. § 753(f).
stated, Godfrey has forfeited any right to pursue a direct
appeal of any legal issues related to the trial of this case
for which he might have obtained a transcript at government
expense. Thus, if Godfrey wishes to obtain a
transcription of his jury trial, like other civil litigants,
he and not the government must bear that litigation cost.
reasons stated, I must deny Godfrey's pending,
 After the court was unable to
accomplish service on Defendant Collins, I severed
Godfrey's claims against this defendant, granted Godfrey
additional time to accomplish service on Collins, and set his
claims against the other defendants for a jury trial. Godfrey
failed to serve Collins within the allotted additional time,
however, so I dismissed all claims against Collins and struck
the case from the court's active docket by order entered
November 24, 2015.
 In any event, Godfrey has not
presented a substantial question for appeal here. He
presented extensive video evidence to jurors and questioned
witnesses about why additional video was not available, but
jurors found defense witnesses' testimony about events to
be more credible than Godfrey's evidence and ruled
against him. See, e.g., Vodrey v. Golden, 864 F.2d
28, 30 n. 4 (4th Cir. 1988) (noting that facts the jury
determined at trial are not reviewable on appeal, if
supported by "any substantial evidence") (quoting
Evington v. Forbes,742 F.2d 834, 835 (4th Cir.
1984)). Moreover, having reviewed pretrial rulings the docket