May v. Patterson et al

Filing 33

ORDER denying 32 Motion for Relief from Judgment by Deric LaVelle May. Signed by Judge Kristi K. DuBose on 10/16/2013. copy mailed. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DERIC LAVELLE MAY,
Plaintiff,
v.
TONY PATTERSON and MS. WHITE,
Defendants.

)
)
)
)
)
)
)

CIVIL ACTION NO. 12-00703-KD-N

ORDER
This action is before the Court on the Motion for Relief from Judgment (Doc. 32) filed by
Plaintiff Deric LaVelle May (“May”). Pursuant to Federal Rule of Civil Procedure 60(b), May
moves for relief from the Court’s Judgment (Doc. 18) dismissing this action without prejudice.
He also invokes the procedure for recusal provided by 28 U.S.C. § 144 (Doc. 32 at 3).

Upon

consideration, the Court finds that the motion is due to be DENIED.
I.

Recusal

In the present motion, May, invoking 28 U.S.C. § 144,1 appears to request that the
undersigned recuse herself from proceeding further in this action, arguing that the undersigned
“engaged in conduct that was so prejudicial to the effect and expeditious aministration [sic] of
the business of the court.” (Doc. 32 at 3).

As evidence that “bias and prejudice exist[,]” May

simply cites to a copy of the Court’s Order dated September 5, 2013, adopting the Magistrate
Judge’s Report and Recommendation and denying May’s motion for more time to file objections
1

“Whenever a party to any proceeding in a district court 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 him or in
favor of any adverse party, such judge shall proceed no further therein, but another judge shall be
assigned to hear such proceeding. []The affidavit shall state the facts and the reasons for the belief that
bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which
the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party
may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record
stating that it is made in good faith.” 28 U.S.C. § 144.

to same.

(Id. at 3, 5).

Whether to recuse from a case is committed to the sound discretion of the Court.
e.g., United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004).
two federal statutes, 28 U.S.C. §§ 144 and 455.”

See,

“Recusal is governed by

Johnson v. Wilbur, 375 F. App'x 960,

964-65 (11th Cir. 2010).
Section 144 provides:
Whenever a party to any proceeding in a district court 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 him or in favor of
any adverse party, such judge shall proceed no further therein.
28 U.S.C. § 144 (2000). To warrant recusal under § 144, the moving party must
allege facts that would convince a reasonable person that bias actually exists. See
Phillips v. Joint Legislative Comm. on Performance & Expenditure Rev., 637
F.2d 1014, 1019 n. 6 (5th Cir. Unit A Feb.1981). Properly pleaded facts in a § 144
affidavit must be considered as true. See id. at 1019.
Section 455 requires that a judge disqualify himself “in any proceeding in which
his impartiality might reasonably be questioned” or “[w]here he has a personal
bias or prejudice concerning a party.” 28 U.S.C. §§ 455(a) & (b)(1) (2000). Under
§ 455, the standard is whether an objective, fully informed lay observer would
entertain significant doubt about the judge's impartiality. See United States v.
Kelly, 888 F.2d 732, 744-45 (11th Cir. 1989).
Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000) (footnote omitted).
May is due no relief pursuant to § 144.
other sworn statement in support of recusal.

First, he has not submitted an affidavit or any

See, e.g., Berger, 375 F.3d at 1227 (“Under § 144,

a party must file ‘a timely and sufficient affidavit’ complaining of a trial judge's personal bias.
This statute is inapplicable to this case because Berger did not file an affidavit.”); Townsend v.
Gray, 505 F. App'x 916, 917 n.2 (11th Cir. 2013) ( “. . . 28 U.S.C. § 144, is inapplicable because
Townsend did not file the requisite affidavit.” (citing Berger)).
Moreover, May’s conclusory statements and bald citation to the undersigned’s previous

2

Order do not constitute “facts that would convince a reasonable person that bias actually exists.”
Christo, 223 F.3d at 1333.

“The United States Supreme Court has instructed that ‘judicial

rulings alone almost never constitute a valid basis for a bias or partiality motion.’ ” Draper v.
Reynolds, 369 F.3d 1270, 1279 (11th Cir. 2004) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)).

Thus, even construing May’s handwritten motion as a sworn declaration, he has

not filed a “sufficient” statement warranting reassignment and recusal under § 144.

For the

same reason, the claims in May’s motion also would not cause “an objective, fully informed lay
observer [to] entertain significant doubt about the [undersigned ]judge's impartiality.” Christo,
223 F.3d at 1333. Thus, no recusal under § 455 is warranted either.

See Draper, 369 F.3d at

1281 (“Draper's unsupported, inflammatory allegations alone would not cause a reasonable
person to question Judge Camp's impartiality and do not entitle him to a new judge.”);
Kapordelis v. Carnes, 482 F. App'x 498, 499 (11th Cir. 2012) (“[H]is allegations of prejudice are
wholly conclusory. The conclusory allegations fail to meet the objective standards for recusal
under either 28 U.S.C. § 144 or § 455(a).”); Fox v. Prudential Fin., 178 F. App'x 915, 919
(11th Cir. 2006) (“Fox's conclusory statements that ‘secret discussions’ between Prudential and
the court ‘manifestly deflate any confidence in the judiciary’ are unsupported by any evidence.
No evidence in the record supports Fox's theory that the court became ‘personally involved in
soliciting Prudential and its attorneys to defend this case’ in secret discussions. A reasonable
person would not find partiality based on bare allegations of bias and nothing more. Nor do
we.”).
As the Court has determined that reassignment and recusal are not warranted, it will now
proceed with its analysis of Petitioner’s Rule 60(b) claims.

3

II.

Rule 60(b) Claims

May moves for relief pursuant to Federal Rules of Civil Procedure 60(b)(1), (4), and (6),
which state:
On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
...
(4) the judgment is void;
...
(6) any other reason that justifies relief.
May’s motion is heavy on legal conclusions but light on substantive allegations.

The

only grounds May appears to assert as entitling him to relief under Rule 60(b) are that the Court
denied May an enlargement of time to object to the Magistrate Judge’s Report and
Recommendation and that the Court adopted the Report and Recommendation before the original
time for filing objections had run.
“Rule 60(b)(1) ‘encompasses mistakes in the application of the law [,]’ including judicial
mistakes.” United States v. One Million Four Hundred Forty-Nine Thousand Four Hundred
Seventy-Three Dollars & Thirty-Two Cents ($1,449,473.32) in U.S. Currency, 152 F. App'x 911,
912 (11th Cir. 2005) (quoting Parks v. U.S. Life and Credit Corp., 677 F.2d 838, 840 (11th Cir.
1982)).

“In general, ‘a judgment is void under Rule 60(b)(4) if the court that rendered it lacked

jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due
process of law.’ ” Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1216 n.13 (11th Cir.
2009) (quoting Burke v. Smith, 252 F.3d 1260, 1263 (11th Cir.2001) (citation omitted)).
The Court finds no error warranting reconsideration of its judgment under either of these

4

subsections.

Even if May had filed objections to the Report and Recommendation, the Court

would have only been required to “make a de novo determination of those portions of the report
or specified proposed findings or recommendations to which objection [wa]s made.” 28 U.S.C.
§ 636(b)(1).

Here, despite having not yet received objections from May, the Court “conducted

a de novo review of the Report and Recommendation and agree[d] with the Magistrate Judge’s
conclusions[,]” specifically that May’s “claim is clearly frivolous.” (Doc. 17).

Moreover, in

denying May’s Rule 59(e) motion to alter or amend judgment, the Court also treated the
arguments raised in that motion as objections to the Report and Recommendation and, “[a]fter a
de novo determination of those portions of the Report and Recommendation to which objection
[wa]s made, . . . f[ound] no reason to reconsider its adoption of the Report and
Recommendation.” (Doc. 22 at 2, n.1).

Accordingly, the Court adequately scrutinized the

Magistrate Judge’s findings and recommendations before adopting them.
“[R]elief under Rule 60(b)(6) ‘is an extraordinary remedy which may be invoked only
upon a showing of exceptional circumstances.’ ”

Johnson v. Am. Sec. Ins. Co., 392 F. App'x

838, 841 (11th Cir. 2010) (quoting Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th
Cir. 2001)).

“A motion pursuant to Rule 60(b)(6) must demonstrate ‘that the circumstances are

sufficiently extraordinary to warrant relief.

Even then, whether to grant the requested relief is

... a matter for the district court's sound discretion.’ ” Id. (quoting . Toole v. Baxter Healthcare
Corp., 235 F.3d 1307, 1317 (11th Cir. 2000) (quotation marks omitted)).

The Eleventh Circuit

“will not reverse a district court's denial of a Rule 60(b)(6) motion on appeal unless the appellant
demonstrates that the district court was required to grant relief.” Id. (citing Cano v. Baker, 435
F.3d 1337, 1342 (11th Cir. 2006)).

May has made no showing of “exceptional circumstances”

warranting reconsideration under this subsection.

5

III.

Conclusion

For the foregoing reasons, it is ORDERED that May’s Motion for Relief from Judgment
(Doc. 32) is DENIED.2
DONE and ORDERED this the 16th day of October 2013.
/s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE

2

Though May has previously filed a Notice of Appeal (Docs. 23, 28), the Court can still deny May’s
motion. See Fed. R. Civ. P. 62.1(a)(2).

6