Macleod v. Scott et al

Filing 44

ORDER denying or finding to be moot all pending motions 27 , 29 , 31 , 32 , 34 , 39 , 40 ; file to remain closed. Signed by Judge Timothy J. Corrigan on 11/24/2014.(SRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
ROBERT CRAIG MACLEOD,
Plaintiff,
v.

Case No. 3:14-cv-830-J-32JRK

GOVERNOR RICK SCOTT et al.,
Defendants.
ORDER
This case is before the Court on pro se plaintiff’s Motions for Reconsideration
(Docs. 34, 39), Motions for Leave to File Verified Amended Complaint (Docs. 27, 40),
Motion for Oral Argument (Doc. 29), Motion for Service of Summons (Doc. 36), Motion
to Stay Appeal (Doc. 31), and a Motion requesting the undersigned be recused (Doc.
32). At the outset, the United States Court of Appeals for the Eleventh Circuit has
ruled and denied Macleod’s motion to stay appeal. (Doc. 41).
Macleod originally filed suit under 42 U.S.C. § 1983 seeking to stay a state court
foreclosure proceeding in which he believed he had a right to a jury trial. (Doc. 1).
The complaint therefore sought the same relief on the same grounds as Macleod’s
complaint in 3:14-cv-753-J-32JBT, which this Court dismissed with prejudice for lack
of jurisdiction. (3:14-cv-753 Doc. 10). Macleod now asks this Court to reconsider,
contending he has not had an “adequate opportunity” to plead his constitutional claims
in state court. (Docs. 34, 39). Macleod seeks to invoke this Court’s jurisdiction as a
remedy. Id.

I.

MOTION TO RECUSE
The Court first takes up Macleod’s motion requesting that the undersigned

recuse himself.

(Doc. 32).

Macleod contends that the undersigned has shown

“pervasive bias and prejudice” by demonstrating “a complete lack of cognizance of the
plaintiff’s pleaded facts” in earlier Orders. (Doc. 32 at 4). Macleod also contends
that the undersigned’s earlier Orders allegedly purport Macleod to be a “liar.” (Doc.
32 at 3 (internal quotes omitted)).
Macleod’s motion seeks relief pursuant to 28 U.S.C. § 455(a). Under § 455(a),
a judge of this Court “shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.”

28 U.S.C. § 455(a). The standard

under § 455 “is whether an objective, disinterested, lay observer fully informed of the
facts underlying the grounds on which recusal was sought would entertain a
significant doubt about the judge’s impartiality.” United States v. Patti, 337 F.3d
1317, 1321 (11th Cir. 2003) (quotation and citation omitted).
“A charge of partiality must be supported by some factual basis . . . . Recusal
cannot be based on unsupported, irrational or highly tenuous speculation.” United
States v. Cerceda, 188 F.3d 1291, 1293 (11th Cir. 1999) (quotation and citation
omitted). Thus, “a judge, having been assigned to a case, should not recuse himself
on unsupported, irrational, or highly tenuous speculation. [Otherwise], the price of
maintaining the purity of the appearance of justice would be the power of litigants or
third parties to exercise a veto over the assignment of judges.”

United States v.

Greenough, 782 F.2d 1556, 1558 (11th Cir. 1986). “Ordinarily, a judge’s rulings in
the same or a related case may not serve as the basis for a recusal motion. The judge’s

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bias must be personal and extrajudicial; it must derive from something other than
that which the judge learned by participating in the case.” McWhorter v. City of
Birmingham, 906 F.2d 674, 678 (11th Cir. 1990) (citation omitted). “An exception to
this general rule occurs when the movant demonstrates ‘pervasive bias and
prejudice.’’’ Id. (citation omitted).
All of Macleod’s allegations relate to the undersigned’s judicial rulings and are
not therefore a basis for recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994)
(“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality
motion”). Macleod contends that the undersigned refused to “accept and articulate
the facts as pled” (Id. at 4) and the Court’s Order of dismissal showed a lack of
understanding thus leading to “pervasive bias and prejudice.” (Doc. 32).
Macleod’s attempts to paint a picture of bias and prejudice on behalf of the
undersigned would not convince an “objective, disinterested, lay observer fully
informed of the facts” that there is any basis for “significant doubt” about the
undersigned’s impartiality.

McWhorter, 906 F.2d at 678 (quotation and citation

omitted). Macleod’s motion to recuse is therefore denied.
II.

MOTIONS FOR RECONSIDERATION
Plaintiff asks for relief from the Court’s Order of dismissal pursuant to Fed. R.

Civ. P. 60(b)(3) which provides for relief from “fraud . . . , misrepresentation, or
misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3). This is a heavy burden
to prove, as the standard is by “clear and convincing evidence.”

Cox Nuclear

Pharmacy, Inc. v. CTI, Inc., 478 F.3d 1303, 1314 (11th Cir. 2007).

Additionally,

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Macleod must show that the alleged conduct in question prevented him from “fully
and fairly presenting his case or defense.” Id. Here, the Court dismissed the case
before any defendant was served and thus the case is clearly free from “fraud . . . ,
misrepresentation, or misconduct by an opposing party.” Fed. R. Civ. P. 60(b)(3)
(emphasis supplied).
However, it appears that Macleod seeks to have this Court grant his motion
based on the allegation that the state court prohibited Macleod from filing his
complaint in state court. (Doc. 34 at 1; Doc. 39 at 1). As this Court has already
explained in this case (Docs. 13, 15, 20) and in several of Macleod’s related cases,1 this
Court has no jurisdiction to intervene in procedures of the state court. This Court
cannot interfere with pending “civil proceedings involving certain orders . . . uniquely
in furtherance of the state courts’ ability to perform their judicial functions.” Sprint
Commc’ns, Inc. v. Jacobs, 134 S. Ct. 584, 591 (2013) (citation omitted). Furthermore,
under the Rooker-Feldman abstention doctrine, this Court lacks jurisdiction to review
orders once the case concludes. Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir.
2009) (citing D.C. Court of Appeals v. Feldman, 460 U.S. 462, 482 (1983)).

The

Rooker-Feldman abstention doctrine only applies “where the plaintiff had a
reasonable opportunity to raise his federal claim in state proceedings. Where the
plaintiff has had no such opportunity, he cannot fairly be said to have failed to raise
the issue.”

Wood v. Orange County, 715 F.2d 1543, 1547 (1983) (internal quotes

See 3:14-cv-753-J-32JBT, Docs. 10, 14; 3:14-cv-806-J-32JBT, Doc. 11; 3:14-cv823-J-32JRK; Doc. 11.
1

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omitted).
In Macleod’s complaint, Macleod sought to have this court compel certain state
officers to protect his rights to a fair trial, including a trial by jury, stating he had not
had an adequate opportunity to have his claims heard. (Doc. 1). Now Macleod’s
primary contention is that the state court prohibited him from filing his complaint
altogether (Docs. 34, 39). Under Wood, this Court finds that Macleod did have an
opportunity to raise the issue at the trial level. 2

Therefore, this Court has no

jurisdiction under the Rooker-Feldman abstention doctrine, and the Court finds no
valid basis for granting Macleod relief from the Court’s prior Order. 3

Therefore,

Macleod’s motions to file a third and fourth amended complaint are denied because
such filings would be futile. In light of the Court’s ruling, all of Macleod’s remaining
motions are moot.
ORDERED:
1. Plaintiff’s Motion to disqualify the undersigned (Doc. 32) is DENIED.
2. Plaintiff’s Motions for Reconsideration (Docs. 34, 39) are DENIED.

On May 13, 2013, on order was entered declaring Macleod a vexatious litigant
in the Seventh Judicial Circuit and in any county Court within the circuit. 3:13-cv606-J-34JBT, Doc. 17-3 (Order Declaring Plaintiff Vexatious). The Order required—
among other things—that Macleod obtain counsel and pay filing fees before filing any
further pleadings. Id. The Order prohibited Macleod from filing any future cases
and continuing any ongoing cases as a pro se litigant pursuant to section 68.093,
Florida Statutes 2011. Id. While the Order placed restrictions on Macleod, it did
not prohibit or bar him from seeking relief in the state court.
2

If Macleod believes that the state court has committed error, he can appeal to
the First District Court of Appeal.
3

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3. Plaintiff’s Motions to File an Amended Complaint (Docs. 27, 40) are
DENIED.
4. Plaintiff’s Motion for Oral Argument (Doc. 29) is MOOT.
5. Plaintiff’s Motion for Service of Summons (Doc. 36) is MOTT.
6. Plaintiff’s Motion to Stay Appeal (Doc. 31) is MOOT.
7. The file is to remain closed.

DONE AND ORDERED at Jacksonville, Florida this 24th day of November,
2014.

cg.
Copies to:
Pro se Plaintiff

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