LEWIS v. PENSACOLA POLICE DEPARTMENT et al

Filing 13

ORDER. The magistrate's 9 Report and Recommendation is adopted and incorporated by reference in this Order. Plaintiff's motion to recuse (Doc. 10 ) is treated as an objection under Fed. R. Civ. P. 72(a) and is DENIED. Plaintiffs motion for judicial notice (Doc. 11 ) is DENIED. This case is DISMISSED without prejudice based on Plaintiffs failure to comply with a court order. The Clerk shall enter judgment in accordance with this Order and close the case file. Signed by JUDGE T KENT WETHERELL II on 11/25/2024. (alb)

Page 1 of 4

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
PRESTON LEWIS,
Plaintiff,
v.

Case No. 3:24cv457-TKW-HTC

PENSACOLA POLICE
DEPARTMENT, et al.,
Defendants.
_____________________/
ORDER
This case is before the Court based on the magistrate judge’s Report and
Recommendation (Doc. 9) and Plaintiff’s objections (Doc. 12).1 The Court reviewed
the issues raised in the objections de novo as required by 28 U.S.C. §636(b)(1) and
Fed. R. Civ. P. 72(b)(3), and based on that review the Court agrees with the
magistrate judge’s determination that this case should be dismissed based on
Plaintiff’s failure to comply with a court order.
None of the arguments in the objections have merit. Only three warrant
discussion: (1) that the case should not be dismissed based on Plaintiff’s failure to
use the court-approved complaint form; (2) that the magistrate judge should be

Plaintiff also filed a motion for judicial notice (Doc. 11), but the statutes listed in the
motion have no apparent relevance to the claims in this case or the Court’s review of the Report
and Recommendation. Thus, the motion for judicial notice will be denied.
1

Page 2 of 4

removed from this case because of bias;2 and (3) that Plaintiff did not consent to the
magistrate judge’s involvement in the case.
With respect to the first argument, Plaintiff contends that this case should not
be dismissed based on his failure to use the court-approved complaint form as
required by the magistrate judge and Local Rule 5.7(A) because (1) that requirement
violates his First Amendment right to petition the government for redress of
grievances and (2) he “suffers from nerve damage” and “cannot hand write on
documents provided by the court due to this damage.” The Court finds no merit in
the First Amendment argument, and putting aside the fact that Plaintiff proffers no
evidence of his alleged nerve damage, the second argument is refuted by the fact that
Plaintiff filled out other court-approved forms by hand. See Doc. 2 (motion to
proceed in forma pauperis and affidavit). Moreover, even if dismissal was not
warranted based on Plaintiff’s failure to use the court-approved complaint form,
dismissal would still be warranted based on Plaintiff’s noncompliance with the
magistrate judge’s other directives. See Doc. 9 at 3-6.

Separately, Plaintiff filed a motion for recusal (Doc. 10) asking the Court to recuse
Magistrate Judge Cannon and “designate another judge to preside over this case” because of her
alleged bias against Plaintiff in her rulings in this case and a prior case. The Court does not have
the authority to rule on that motion because a motion to recuse can only be ruled on by the judge
that it seeks to recuse. However, because the motion was filed within 14 days of Judge Cannon’s
order denying recusal (Doc. 8), it will be treated as an objection under Fed. R. Civ. P. 72(a). A
magistrate judge’s order can only be modified or set aside under that rule only if the order is
“clearly erroneous” or “contrary to law,” and Judge Cannon’s order is neither of those things
because, as stated below, it is well-established that claims of judicial bias cannot be based solely
on prior rulings.
2

Case No. 3:24cv457-TKW-HTC

Page 3 of 4

With respect to the second argument, Plaintiff contends that the magistrate
judge is biased because (1) she was acting as Defendants’ lawyer and (2) she ruled
against Plaintiff in a prior case. The first argument is presumably based on the fact
that the magistrate judge sua sponte identified deficiencies in Plaintiff’s filings, but
that screening is statutorily required by 28 U.S.C. §1915(e)(2) because Plaintiff is
proceeding in forma pauperis. See Holliday v. Sec’y, Fla. Dep’t of Corr., 2022 WL
4127617, at *1 n.1 (11th Cir. Sept. 12, 2022) (“Section 1915(e)(2)’s screening
procedures apply to IFP proceedings brought by prisoners and non-prisoners
alike.”). The second argument is meritless because it is well-established that claims
of judicial bias cannot be based solely on prior rulings. See Liteky v. United States,
510 U.S. 540, 550-56 (1994); United States v. Berger, 375 F.3d 1223, 1227 (11th
Cir. 2004).
With respect to the third argument, Plaintiff’s consent was not required for
this case to be referred to the magistrate judge for issuance of a report and
recommendation. See N.D. Fla. Loc. R. 72.2(E) (explaining that pro se cases filed
by non-prisoners will be referred to the magistrate judge “for all proceedings,
including ... filing of a report and recommendation containing proposed findings of
fact and conclusions of law and recommending disposition of the case”). Indeed, it
is well-established that the parties’ consent is not required to refer a case to a
magistrate judge under 28 U.S.C. §636(b)(1)(B) for the issuance of a report and

Case No. 3:24cv457-TKW-HTC

Page 4 of 4

recommendation. See, e.g., Wright v. Sprayberry, 817 F. App’x 725, 729 (11th Cir.
2020); U.S. Bank, N.A. as trustee for LSF8 Master Participation Tr. v. Tobin, 754
F. App’x 843, 846 (11th Cir. 2018).
Accordingly, it is ORDERED that:
1.

The magistrate judge’s Report and Recommendation is adopted and

incorporated by reference in this Order.
2.

Plaintiff’s motion to recuse (Doc. 10) is treated as an objection under

Fed. R. Civ. P. 72(a) and is DENIED.
3.

Plaintiff’s motion for judicial notice (Doc. 11) is DENIED.

4.

This case is DISMISSED without prejudice based on Plaintiff’s

failure to comply with a court order.
5.

The Clerk shall enter judgment in accordance with this Order and close

the case file.
DONE AND ORDERED this 25th day of November, 2024.

__________________________________
T. KENT WETHERELL, II
UNITED STATES DISTRICT JUDGE

Case No. 3:24cv457-TKW-HTC