UNITED STATES OF AMERICA v. TERRY

Filing 53

ORDER signed by JUDGE THOMAS D. SCHROEDER on 08/09/2017 adopting the Magistrate Judge's Recommendation, that Defendant's motion to quash (Doc. 5 ), motion to transfer case (Doc. 6 ), motion for recusal ((Doc. 7 ), motion for sanction (Doc. 10 ), motion to dismiss (Doc. 16 ), motion to alter and vacate the court's September 8, 2016 Order (Doc. 44 ), and motions for judicial disqualification (Doc. 45 , 50 ) are DENIED. (Garland, Leah)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

UNITED STATES OF AMERICA,
Plaintiff,
v.
GARY IVAN TERRY,
Defendant.

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1:14MC42

ORDER
The Recommendation of the United States Magistrate Judge
(Doc. 40) was filed with the court in accordance with 28 U.S.C.
§ 636(b) and, on August 31, 2016, was served on the parties in
this action (Doc. 41).
(Doc. 43.)

Defendant objected to the Recommendation.

Also before the court are Defendant’s pro se motion to

alter and vacate the court’s September 8, 2016 Order (Doc. 44),
and two motions for judicial disqualification. (Docs. 45, 50.)
The Government has responded (Docs. 46, 47, 51), and Defendant has
replied (Docs. 48, 49, 52).
Prior

to

May

1,

2017,

this

objections and briefs to 20 pages.

court’s

local

rules

L.R. 7.3(d) & 72.4. 1

was previously warned of these limitations.

limited

Defendant

(Doc. 42 at 1.)

Consequently, the court will not consider Defendant’s briefs and

1

As of May 1, 2017, the limitations were based on word count (which must
be certified by the filer) or pages.
No post-May 1, 2017 filing of
Defendant appears to violate the current rules.

objections

to

the

extent

they

exceed

the

applicable

page

limitations.
The court has appropriately reviewed the portions of the
Magistrate Judge’s report to which objection was made (Doc. 40)
and has made a de novo determination, which is in accord with the
Magistrate

Judge’s

report.

The

court

therefore

overrules

Defendant’s objections (Doc. 43) and adopts the Magistrate Judge’s
Recommendation.
Defendant’s motion to alter and vacate this court’s September
8, 2016 Order (Doc. 44) was filed October 5, 2016.

To the extent

it is considered as a motion to amend judgment, it is timely under
Federal

Rule

of

Civil

Procedure

59(e).

Such

motions

are

disfavored, however, and may be granted “(1) to accommodate an
intervening change in controlling law; (2) to account for new
evidence not available at trial; or (3) to correct a clear error
of law or prevent manifest injustice.”

Pac. Ins. Co. v. Am. Nat’l

Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998).

Litigants may

not use the motion “to raise arguments which could have been raised
prior to the issuance of the judgment, nor . . . to argue a case
under a novel legal theory that the party had the ability to
address in the first place.” Id. No basis for altering or vacating
the court’s Order applies here.

To the extent the motion could

otherwise be considered in the court’s discretion, the court denies
it as well because there was no error in the court’s ruling.
2

Finally, Defendant has filed two motions to disqualify the
undersigned as judge in this case.

(Docs. 45, 50.)

Defendant’s

motions are based on the fact that this court as well as other
courts have previously ruled against him, or on other meritless
grounds

that

would,

conveniently

for

disqualify every judge in this district.

Defendant,

serve

to

The motions are wholly

lacking in merit and will be denied.
IT IS THEREFORE ORDERED that Defendant’s motion to quash (Doc.
5), motion to transfer case (Doc. 6), motion for recusal ((Doc.
7), motion for sanction (Doc. 10), motion to dismiss (Doc. 16),
motion to alter and vacate the court’s September 8, 2016 Order
(Doc. 44), and motions for judicial disqualification (Doc. 45, 50)
are DENIED.

/s/
Thomas D. Schroeder
United States District Judge

August 9, 2017

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