            Case: 14-15282   Date Filed: 02/28/2017   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-15282
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 9:14-cv-80586-KLR



DANIEL IMPERATO,

                                                             Plaintiff-Appellant,

                                    versus

NAVIGATORS INSURANCE COMPANY,

                                                           Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                             (February 28, 2017)

Before HULL, WILSON, and MARTIN, Circuit Judges.

PER CURIAM:
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      Daniel Imperato, proceeding pro se, appeals: (1) the district court’s sua

sponte dismissal of his complaint, which alleged a breach of contract claim against

his former insurer, Navigators Insurance Company (“Navigators”); (2) the denial

of his request to proceed in forma pauperis; and (3) the denial of his motion to

recuse the magistrate judge and district court judge. After careful review, we

affirm the district court’s denial of Imperato’s motion to proceed in forma pauperis

and his motion for recusal, but reverse the dismissal of Imperato’s complaint and

remand for further proceedings consistent with this opinion.

                                         I.

      In 2012, the Securities and Exchange Commission (“SEC”) brought a civil

action against Imperato and other defendants, including his company, Imperiali.

The SEC alleged that several securities laws had been violated. The district court

granted summary judgment in favor of the SEC, and this Court affirmed that ruling

on appeal. SEC v. Imperiali, Inc., 594 F. App’x 957 (11th Cir. 2014) (per curiam).

The district court’s summary judgment order adopted the magistrate judge’s

Report and Recommendation, which found Imperato

      inten[ded] to deceive by knowingly making blatantly false and
      deceptive material statements . . . which were subsequently
      disseminated to potential investors via the internet [and that] [t]hese
      deceptions . . . were all part of Imperato’s scheme to lure investors to
      the company, and establish his liability as a primary violator of the
      anti-fraud provisions . . . .



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SEC v. Imperiali, Inc., No. 12-80021-CIV, 2013 WL 12080193, at *14 (S.D. Fla.

Sept. 25, 2013).

       In May 2014, Imperato filed this action against Navigators seeking

indemnification. He alleged his policy with Navigators “cover[ed] the directors

and officers pertaining to mismanagement and[/]or [SEC] claims.” Imperato

claimed Navigators improperly refused and denied his claims, and as a result,

caused him “irreparable harm and insurmountable damages” and caused Imperiali

to fail.

       This action was transferred to the district court judge and magistrate judge

who had presided over Imperato’s SEC action. Imperato moved to recuse them

both under 28 U.S.C. §§ 144 and 455 because of their involvement with the SEC

action and “personal bias and prejudice” against him. The district court denied the

motion.

       Imperato then sought leave to proceed in forma pauperis and asked for

volunteer counsel. The motion was denied because Imperato had not filed the

required form along with his motion detailing his financial situation. Imperato

filed another motion to appoint counsel, as well as a “Motion Correction and

Clarification,” but both those motions were not filed on the proper forms and also

lacked any financial information. The magistrate judge found Imperato’s

complaint was “clearly baseless,” pointing to Navigators’s policy that excluded


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losses resulting from Imperato’s “deliberately fraudulent or criminal acts . . . if it is

finally adjudicated that such conduct in fact occurred.” Because the district court

found Imperato was deliberately fraudulent in the SEC action, the magistrate judge

concluded “there [was] no set of facts under which [Imperato] could prevail on a

breach of contract claim.” The magistrate judge recommended Imperato’s

complaint be dismissed with prejudice under 28 U.S.C. § 1915(e)(2), and the

district court adopted that recommendation. This appeal followed.

                                           II.

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim under § 1915(e)(2)(B)(ii), viewing the allegations in the complaint as true.

Hughes v. Lott, 350 F.3d 1157, 1159–60 (11th Cir. 2003). A district court’s sua

sponte dismissal for frivolity under § 1915(e)(2)(B)(i) is reviewed for an abuse of

discretion. Id. at 1160.

      We review the denial of a petition to proceed in forma pauperis for an abuse

of discretion. Daker v. Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1283 (11th

Cir. 2016). We also review the denial of a motion to recuse for an abuse of

discretion. United States v. Perkins, 787 F.3d 1329, 1342 (11th Cir. 2015).

                                           A.

      Imperato first argues the district court erred in dismissing his complaint with

prejudice. The district court relied on § 1915(e) in dismissing Imperato’s


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complaint. Section 1915 governs in forma pauperis proceedings. See 28 U.S.C.

§ 1915. However, while Imperato moved for in forma pauperis status, he was not

actually proceeding in forma pauperis because he paid his filing fee. This Court

has held “[l]ogically, § 1915(e) only applies to cases in which the plaintiff is

proceeding IFP.” Farese v. Scherer, 342 F.3d 1223, 1228 (11th Cir. 2003) (per

curiam). Therefore, the district court could not properly dismiss Imperato’s claim

based on this statute. We reverse the district court’s dismissal of Imperato’s

complaint and remand for further proceedings consistent with this opinion.1

                                                B.

       Imperato next argues the district court erred in denying his motion to

proceed in forma pauperis. Federal courts may allow someone who is unable to

afford the costs of litigation to go forward with an action without paying fees when

that person submits a financial affidavit. See 28 U.S.C. § 1915(a)(1). That

affidavit must say “the nature of the action . . . and affiant’s belief that the person

is entitled to redress.” Id. The same statute gives the court discretion to appoint

counsel for that person, even though civil litigants do not have a constitutional

right to counsel. See id. § 1915(e); Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir.

1999).
       1
         Nothing in this opinion should be read to mean the district court’s factual analysis was
incorrect. Upon remand, the district court is free to reconsider Navigators’s motion to dismiss
that was denied as moot or consider if sua sponte dismissal under Federal Rule of Civil
Procedure 12(b)(6) would be appropriate. See Am. United Life Ins. Co. v. Martinez, 480 F.3d
1043, 1057, 1069 (11th Cir. 2007).
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      The district court properly denied Imperato’s motion to proceed in forma

pauperis because he did not file the required affidavit specified in § 1915(a).

Therefore, the district court did not abuse its discretion.

                                           C.

      Finally, Imperato argues the district court erred in denying his motion to

recuse the district court judge and the magistrate judge. A federal judge must

recuse if a party to a proceeding “files a timely and sufficient affidavit that the

judge . . . has a personal bias or prejudice [] against him.” 28 U.S.C. § 144. The

affidavit “must allege facts that would convince a reasonable person that bias

actually exists.” Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). A

federal judge must disqualify from “any proceeding in which his impartiality might

reasonably be questioned” or if the judge “has a personal bias or prejudice

concerning a party.” 28 U.S.C. § 455. To require recusal under this statute, the

movant must show “an objective, fully informed lay observer would entertain

significant doubt about the judge’s impartiality.” Christo, 223 F.3d at 1333.

      Imperato has not met his burden. His motion for recusal did not attach an

affidavit and provides no support for his claim of prejudice or bias beyond

conclusory allegations. Imperato’s only factual assertion in the motion is that the

two judges presided over his earlier matters. This Court’s “general rule is that bias

sufficient to disqualify a judge must stem from extrajudicial sources,” unless “a


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judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice

that it constitutes bias against a party.” In re Walker, 532 F.3d 1304, 1310–11

(11th Cir. 2008) (per curiam) (quotation omitted). Imperato did not allege any

extrajudicial bias in his motion, and has not pointed to any improper remark by

either judge showing bias or prejudice. And “[r]ecusal cannot be based on

unsupported, irrational or highly tenuous speculation.” United States v. Cerceda,

188 F.3d 1291, 1293 (11th Cir. 1999) (per curiam) (quotation omitted). Therefore,

the district court did not abuse its discretion.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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