Adams v. Rivera et al

Filing 12

ORDER adopting 5 Report and Recommendations in toto, and plaintiff's claims for wrongful death, outrage, and fraud are dismissed. That plaintiff's request that this court recuse is denied. That plaintiff's 7 Response to Report and Recommendation is overruled. Further that this matter is remanded to UnitedStates Magistrate Judge James R. Marschewski to address service ofprocess issues with regard to defendant Jesse Rivera. Signed by Honorable Jimm Larry Hendren on August 11, 2011. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
DALE B. ADAMS

PLAINTIFF

v.

Civil No. 11-3021

JESSE RIVERA and
TOBY SHEARER

DEFENDANT
O R D E R

Now

on

this

11th

day

of

August,

2011,

comes

on

for

consideration the Report And Recommendation Of The Magistrate
Judge ("R&R")(document #5), and plaintiff's Response To Report And
Recommendation ("Response") (document #7), and the Court, having
carefully reviewed both documents, finds and orders as follows:
1.

Before addressing the merits of the R&R, the Court will

address plaintiff's suggestion, in his Response, that the Court
recuse.

While plaintiff only obliquely alludes to the basis for

this suggestion,1 the Court believes it is based on the fact that
plaintiff has pending litigation in which the undersigned is named
as a defendant.

This is the matter now pending as Case 11-3059 in

the United States District Court for the Western District of
Arkansas ("Case 11-3059").
2.

Recusal is governed by 28 U.S.C. § 455, which provides,

insofar as might be relevant to these proceedings, that "any . .

1
In the second paragraph of his Response, plaintiff states that "[a] tort claim was
filed against Tyson Foods and numerous employees as well as other parties on the date
of March 8, 2011. . . . The summons and complaints were mailed to Tyson Foods, Arkansas
Attorney General and the US Attorney; Deborah Groom on the date of June 20, 2011. . .
. The service of summons creates a conflict of interest and recusal is proper before any
decisions are made regarding this report and recommendation."

. judge . . . of the United States shall disqualify himself in any
proceeding

in

which

his

impartiality

might

reasonably

be

questioned."
The reasonableness standard is an objective one, and has been
explained as "whether the judge's impartiality might reasonably be
questioned by the average person on the street who knows all the
relevant facts of a case."

Moran v. Clarke, 296 F.3d 638, 648

(8th Cir. 2002).
Judges are presumed to be impartial, and the party seeking
recusal has the burden of proving otherwise.

Pope v. Federal

Express Corp., 974 F.2d 982, 985 (8th Cir. 1992).

In making the

recusal decision, it is axiomatic that "a federal judge has a duty
to sit where not disqualified which is equally as strong as the
duty to not sit where disqualified."

Laird v. Tatum, 409 U.S.

824, 837 (1972).
3.
has

filed

The Court has considered whether the fact that a person
a

lawsuit

against

it

would

justify

recusal,

and

concludes that under the circumstances here presented, it would
not.
The claims that plaintiff has made against the undersigned in
Case 11-3059 all relate to judicial action in other litigation
pending before this Court, for which the undersigned enjoys
judicial immunity.

"[I]t is a general principle of the highest

importance to the proper administration of justice that a judicial
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officer, in exercising the authority vested in him, shall be free
to act upon his own convictions, without apprehension of personal
consequences to himself."
(1871).

Bradley v. Fisher, 80 U.S. 335, 347

Thus, because the undersigned is not put at risk by

plaintiff's

filing

of

Case

11-3059,

the

Court

regards

the

assertion of claims against it in that case as more of a judgeshopping tactic than as a genuine assertion of claims for relief.
In reviewing legal precedent potentially applicable to this
situation, the Court finds it analogous to cases addressing
whether recusal is proper in the face of threats to the court. In
U.S. v. Beale, 574 F.3d 512, 519 (8th Cir. 2009), the court found
that recusal was not required where defendant issued a bogus
"arrest warrant" for the judge, because defendants "are not
permitted to use such a plot or threat as a judge-shopping
device." While a genuine threat would merit recusal, an empty one
does not.

U.S. v. Dehghani, 550 F.3d 716 (8th Cir. 2008).

When the Court considers that judges are presumed to be
impartial; that the party seeking recusal has the burden of
proving otherwise; and that the issue of judicial impartiality is
tested by the perception of "the average person on the street who
knows all the relevant facts of a case," it finds that recusal is
not called for in this case.

There is no reason to believe that

the average person who is fully informed as to judicial immunity
and the allegations directed at the undersigned in Case 11-3059
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would question the Court's impartiality.
4.

Turning to the merits of the case at bar, the R&R

recommends dismissal of plaintiff's claims for wrongful death,
outrage, and fraud.

Plaintiff objects only to the recommendation

that his outrage claim be dismissed, contending that his Complaint
is sufficient to plead such a claim and reciting various factual
allegations that he relies upon.

The force of this recitation is

considerably undermined, however, by plaintiff's statement that he
may

eventually

choose

to

withdraw

his

claims

against

the

defendants in return for their testimony against "the proper
guilty party -- Tyson Foods."
Under Arkansas law, an outrage claim requires -- among other
things -- proof of conduct that is "utterly intolerable in a
civilized community," and proof that defendant's actions were the
cause of plaintiff's distress.

Cessna v. Gray, 2009 Ark. App.

143, 2, 316 S.W.3d 257, 259 (Ark. App. 2009).

Plaintiff's

willingness to drop his claims against the defendants in exchange
for their testimony against Tyson Foods is inconsistent with the
first of these requirements, and his contention that Tyson Foods
is "the proper guilty party" cannot be squared with the second.
5.

For the foregoing reasons, the Court will overrule

plaintiff's single objection to the R&R.

The Court has fully

considered the R&R, and finds it sound in all respects, and it
will be adopted in toto.

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IT IS THEREFORE ORDERED that plaintiff's request that this
Court recuse is denied.
IT IS FURTHER ORDERED that plaintiff's Response To Report And
Recommendation (document #7) is overruled.
IT IS FURTHER ORDERED that Report And Recommendation Of The
Magistrate Judge (document #5) is adopted in toto, and plaintiff's
claims for wrongful death, outrage, and fraud are dismissed.
IT IS FURTHER ORDERED that this matter is remanded to United
States Magistrate Judge James R. Marschewski to address service of
process issues with regard to defendant Jesse Rivera.
IT IS SO ORDERED.
/s/ Jimm Larry Hendren
JIMM LARRY HENDREN
UNITED STATES DISTRICT JUDGE

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