WATSON v. MCPHATTER et al

Filing 195

MEMORANDUM OPINION AND ORDER as to TRAVIS L. WATSON,signed by MAG/JUDGE L. PATRICK AULD on 4/22/22, that the instant Motion (Docket Entry 153 ) is DENIED IN PART AND DEFERRED IN PART, in that Plaintiffs request for recusal of the undersigned Magistrate Judge is denied and Plaintiffs request for recusal of Judge Biggs is deferred. (Butler, Carol)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TRAVIS L. WATSON,
Plaintiff,
v.
DETECTIVE MCPHATTER, et al.,
Defendants.

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1:17CV934

MEMORANDUM OPINION AND ORDER
This case comes before the undersigned Magistrate Judge on
Plaintiff’s Motion to Recuse Magistrate Judge L. Patrick Auld and
Judge Loretta C. Biggs (Docket Entry 153 (the “instant Motion”);
see also Docket Entry 153-1 (supporting affidavit)).

Because

Plaintiff did not comply with Local Rules regarding motion practice
and, in the alternative, did not establish any basis for recusal
under governing authority, this Order will deny the instant Motion
to the extent it requests recusal of the undersigned Magistrate
Judge; however (and notwithstanding the total absence of any
showing of any basis for Judge Biggs’s recusal), because the
disqualification statute speaks to the duty of an individual judge
to

determine

whether

circumstances

require

that

judge

to

“disqualify h[er]self,” 28 U.S.C. § 455(a) & (b), this Order will
defer the question of Judge Biggs’s recusal to Judge Biggs.1

1

The undersigned Magistrate Judge has entered an order,
rather than a recommendation, on the instant Motion, because “[a]
motion to recuse is a nondispositive matter,” Cleveland v. South
(continued...)

INTRODUCTION
The Court (per the undersigned Magistrate Judge) permitted
Plaintiff to proceed as a pauper in this action, which he brought
under 42 U.S.C. § 1983.

(See Docket Entry 3 at 1; see also Docket

Entry 2 at 2-3 (naming three detectives employed by City of
Greensboro as Defendants).) After discovery closed, the Court (per
Judge Biggs) entered summary judgment for Defendants on all of the
claims

in

this

action,

except

as

“to

Detective

Altizer

on

Plaintiff’s fourth-amendment claim for illegal searches of his
mail.”

(Docket Entry 53 at 1; see also Docket Entry 61 at 2

(dismissing Plaintiff’s interlocutory appeal of that order).)
Clerk subsequently set the case for trial.

The

(See Docket Entry 65;

see also Docket Entry 81 (re-setting trial date due to scheduling
conflicts).)

Approximately six weeks later (and nearly four,

1

(...continued)
Carolina, No. 8:17CV2922, 2017 WL 6498164, at *1 (D.S.C. Dec. 19,
2017) (unpublished) (“affirm[ing] the [m]agistrate [j]udge’s order
[denying recusal motion under] ‘clearly erroneous or contrary to
law’ [standard]” (quoting 28 U.S.C. § 636(b)(1)(A))); accord Kiser
v. Ferris, Civ. No. 2:04-1214, 2009 WL 1770084, at *1 (S.D.W. Va.
June 16, 2009) (unpublished); see also 28 U.S.C. § 636(b)(1)(A) &
(B) (authorizing (A) “designat[ion of] magistrate judge to hear and
determine any pretrial matter pending before the court except
[eight specified motions, none of which involve recusal],” subject
to reconsideration by district judge only if “clearly erroneous or
contrary to law,” and (B) “designat[ion of] magistrate judge to
conduct hearings . . . and to submit to [district] judge . . .
proposed findings of fact and recommendations for the disposition,
by [district] judge . . . of any [of the eight pretrial] motion[s]
excepted in subparagraph (A),” subject to district judge’s “de novo
determination of those . . . specified proposed findings or
recommendations to which objection is made” (emphasis added)).
-2-

largely unremarkable, years into the life of this case), Plaintiff
began

unleashing

(what

has

become)

an

unceasing

barrage

of

increasingly unhinged filings (now numbering more than four dozen
in a period of six months).

(See, e.g., Docket Entries 69, 71, 76,

77, 78, 79, 80, 86, 87, 88, 100, 101, 104, 109, 110, 113, 114, 115,
116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 128, 129,
131, 132, 133, 143, 152, 154, 157, 158, 161, 164, 165, 169, 174,
178, 179, 180, 186, 189, 190, 191.)

The undersigned Magistrate

Judge has denied (or recommended denial of) some of the motions/
requests included amongst those filings.

(See Text Orders dated

Feb. 4 & 5, Mar. 11 & 27, 2022; Docket Entry 138.)

Judge Biggs has

affirmed and/or adopted those orders and recommendations.

(See

Docket Entries 182, 183.) In the midst of that activity, Plaintiff
filed the instant Motion, which “requests that . . . Magistrate
[Judge] Auld and Judge [] Biggs be recused from this case because
their actions, findings, and rulings have not been in accord with
law.

They

discretion.”

are

clearly

being

bias

[sic]

and

abusing

their

(Docket Entry 153 at 6.)
DISCUSSION

“All motions, unless made during a hearing or at trial, . . .
shall be accompanied by a brief except as provided in section (j)
of [Local R]ule [7.3].”
section

does

not

M.D.N.C. LR 7.3(a).

exempt

recusal

motions

The cross-referenced
from

the

briefing

requirement. See M.D.N.C. LR 7.3(j) (listing nine motions, none of

-3-

which concern recusal). Petitioner did not file a brief in support
of the instant Motion.

(See Docket Entries dated Feb. 22, 2022

(date of receipt and docketing of instant Motion), and the present
(showing no such brief).)

“A motion unaccompanied by a required

brief may, in the discretion of the Court, be summarily denied.”
M.D.N.C. LR 7.3(k). Here, the record warrants the exercise of that
discretionary authority to summarily deny the instant Motion.
To begin, Plaintiff cannot claim lack of notice about the
above-quoted Local Rules, as – when discovery commenced – the
undersigned Magistrate Judge ensured that Plaintiff received a copy
of the Local Rules.

(See Text Order dated Apr. 30, 2019; see also

Docket Entry 121 (manifesting understanding of obligation to file
brief in support of (at least some) motions by doing so).)
does Plaintiff’s pro se status excuse his non-compliance.

Nor
See,

e.g., McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have
never suggested that procedural rules in ordinary civil litigation
should be interpreted so as to excuse mistakes by those who proceed
without counsel.”); Dancy v. University of N.C. at Charlotte, No.
3:08CV166,

2009

WL

2424039,

at

*2

(W.D.N.C.

Aug.

3,

2009)

(unpublished) (“[E]ven pro se litigants are expected to comply with
.

.

.

procedural

rules

‘without

which

effective

judicial

administration would be impossible.’” (italics omitted) (quoting
Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989))); DeWitt v.
Hutchins, 309 F. Supp. 2d 743, 749 (M.D.N.C. 2004) (Dixon, M.J.)

-4-

(“‘[P]ro se litigants are not entitled to a general dispensation
from the rules of procedure . . . .’” (quoting Jones v. Phipps, 39
F.3d 158, 163 (7th Cir. 1994))), cited with approval, Casper v.
Comcast Corp., No. 1:17CV826, 2020 WL 1472303, at *2 (M.D.N.C. Mar.
26, 2020) (unpublished) (Biggs, J.).

Further, Plaintiff did not

include within the instant Motion all the material required in
briefs, including most importantly “refer[ences] to all statutes,
rules and authorities relied upon,” M.D.N.C. LR 7.2(a)(4).

(See

Docket Entry 153 at 1-6 (lacking citation to any statutory or other
authority for recusal on any basis, much less based on allegations
articulated); see also Docket Entry 153-1 at 1-2 (same).)

Indeed,

the instant Motion does not even comply with the (more) basic
requirement that “[a]ll motions shall state with particularity the
grounds therefor[ and] shall cite any statute or rule of procedure
relied upon,” M.D.N.C. LR 7.3(b).

(See Docket Entry 153 at 1-6

(lacking citation to any statutory or other authority for recusal
on any basis, much less based on allegations articulated); see also
Docket Entry 153-1 at 1-2 (same).)
In sum, the instant Motion merits summary denial because, in
contravention of the Local Rules, it “was not accompanied by a
brief, does not state with particularity the grounds for [the]
request[ed relief], and fails to set forth the federal rule or
other statute under which [Plaintiff] seeks relief. While a pro se
document should be construed liberally, courts do not assume the

-5-

role of advocate and develop [requests] not [properly] raised.”
LHF Prods., Inc. v. Fogg, No. 1:16CV1050, 2017 WL 10978801, at *1
(M.D.N.C.

June

30,

2017)

(unpublished)

(Biggs,

J.)

(italics

omitted); see also Harr v. Brodhead, No. 1:11CV263, 2012 WL 719953,
at *3 n.3 (M.D.N.C. Mar. 5, 2012) (unpublished) (Schroeder, J.)
(“[A]ll

litigants,

those

represented

by

counsel

and

those

proceeding pro se, are required to consult the local rules before
filing any material.”), aff’d, 475 F. App’x 15 (4th Cir. 2012).
Alternatively, “if the [C]ourt were to construe [the instant
Motion

as

properly

procedurally]

made

pursuant

authority] . . ., [it] would likewise fail.”
10978801, at *1.

to

[pertinent

LHF Prods., 2017 WL

In that regard, “[t]here are two sections in the

United States Code pursuant to which a party may request that a
judge be recused from a case, Title 28 U.S.C. §§ 144 and 455.”
Okocha v. Adams, No. 1:06CV275, 2007 WL 1074664, at *3 (M.D.N.C.
Apr. 9, 2007) (unpublished) (Osteen, Sr., J.), aff’d, 259 F. App’x
527 (4th Cir. 2007).

The only provisions of the latter statute

that conceivably could apply to the allegations of the instant
Motion (and supporting affidavit) state:

“(a) Any justice, judge,

or magistrate judge of the United States shall disqualify himself
[or herself] in any proceeding in which his [or her] impartiality
might reasonably be questioned.

(b) He [or she] shall also

disqualify himself [or herself] . . . [w]here he [or she] has a
personal bias or prejudice concerning a party . . . .”

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28 U.S.C.

§ 455 (emphasis added).2 The other recusal-related statute mirrors
that language from Subsection 455(b):

“Whenever a party . . .

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 [the filing party] or in favor of any adverse party,
such judge shall proceed no further . . . .”

28 U.S.C. § 144

(emphasis added); see also Liteky v. United States, 510 U.S. 540,
548 (1994) (observing that “paragraph (b)(1) [of § 455] entirely
duplicate[s] the grounds of recusal set forth in § 144”).
In

light

of

that

overlapping

language,

“the

substantive

standard for recusal under [these provisions of] 28 U.S.C. § 144
and 28 U.S.C. § 455 is the same, namely, whether a reasonable
person with knowledge of the relevant facts would conclude that the
judge’s impartiality might reasonably be questioned.”

Davis v.

United States, Nos. 6:95CR284, 1:99CV842, 2002 WL 1009728, at *2
(M.D.N.C.
brackets

Jan.
and

8,

2002)

quotation

(unpublished)

marks

F. App’x 192 (4th Cir. 2003).

omitted)),

(Beaty,
appeal

J.)

(internal

dismissed,

55

Put another way, “[t]he inquiry is

whether a reasonable person would have a reasonable basis for

2

The other portions of Subsection 455(b) address situations
involving a judge’s “personal knowledge of disputed evidentiary
facts concerning the proceeding,” 28 U.S.C. § 455(b)(1), prior work
in “private practice,” 28 U.S.C. § 455(b)(2), or “governmental
employment,” 28 U.S.C. § 455(b)(3), “financial interest[s],” 28
U.S.C. § 455(b)(4), and “spouse, or a person within the third
degree of relationship to either [the judge or judge’s spouse], or
the spouse of such a person,” 28 U.S.C. § 455(b)(5).
-7-

questioning the judge’s impartiality . . . .

A presiding judge is

not, however, required to recuse himself [or herself] simply
because of unsupported, irrational or highly tenuous speculation.”
United

States

v.

Cherry,

330

F.3d

658,

665

(4th

Cir.

2003)

(internal quotation marks omitted); see also id. (“The test is an
objective one . . . .”); Okocha, 2007 WL 1074664, at *4 (“It is
well settled that ‘the filing o[f] a section 144 affidavit does not
itself automatically effect the [judge’s] ouster.’

‘A judge

against whom an affidavit under § 144 is filed must pass upon the
legal sufficiency of the facts alleged.

It is equally [the

judge’s] duty, however, to deny the relief claimed on account of
the facts stated in the affidavit if they are legally insufficient,
as it is to grant relief if they are sufficient.’” (internal
brackets, citation, and block-quote formatting omitted) (first
quoting Marty’s Floor Covering Co. v. GAF Corp., 604 F.2d 266, 268
(4th Cir. 1979), and then quoting Sine v. Local No. 922 Int’l Bhd.
of Teamsters, 882 F.2d 913, 914 (4th Cir. 1989))); Davis, 2002 WL
1009728, at *1 (explaining that, when reviewing affidavit under
Section 144, “[t]he judge is not required . . . to consider
conclusory statements, opinions, or speculations”).
Moreover, these recusal provisions “carry an ‘extrajudicial
source’ limitation, under which bias or prejudice must, as a
general

matter,

stem

from

‘a

the

judicial

proceedings at hand’ in order to disqualify a judge.”

Belue v.

-8-

source

outside

Leventhal, 640 F.3d 567, 572 (4th Cir. 2011) (internal citations
omitted) (first quoting Liteky, 510 U.S. at 551, 554, and then
quoting id. at 545).

“Of course, the [Supreme] Court was careful

to not make the extrajudicial source limitation an ironclad rule.
. . .

Nevertheless, the [Supreme] Court did make clear that

parties would have to meet a high bar to achieve recusal based on
in-[case] predispositions.” Belue, 640 F.3d at 573. Specifically:
[J]udicial rulings and “opinions formed by the judge on
the basis of facts introduced or events occurring in the
course of the current proceedings, or of prior
proceedings” almost “never constitute a valid basis for
a bias or partiality motion.” Likewise, judicial remarks
that are “critical or disapproving of, or even hostile
to, counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge.”
Id. (internal citation omitted) (quoting Liteky, 510 U.S. at 555).
Here, as the instant Motion’s demand for relief (quoted in the
Introduction) reflects – and as the full text of the instant Motion
and supporting affidavit confirms (see Docket Entry 153 at 1-6;
Docket Entry 153-1 at 1-2) – Plaintiff “seeks recusal because he is
unhappy

with

the

Court’s

adverse

rulings.

Yet

it

is

well-

established that mere disagreement on legal questions does not
require a judge to recuse.”

McSwain v. Jobs, No. 1:13CV890, 2014

WL 12495108, at *1 (M.D.N.C. Apr. 2, 2014) (unpublished) (Eagles,
J.); see also id. (“When a party disagrees with the rulings of a
[m]agistrate [j]udge, [the party] is free to file appropriate
objections. If [the party] disagrees with how those objections are
treated by the district [judge], [the party] may file a notice of
-9-

appeal. . . .

[The party] is not allowed to challenge court orders

by the back door of a recusal motion . . . .”); Freeze v. VA Med.
Ctr., Nos. 1:05CV219 & 220, 2005 WL 6058712, at *1 (M.D.N.C. June
21, 2005) (unpublished) (Bullock, J.) (“It appears that [the
p]laintiff is dissatisfied with previous rulings of this court in
other cases . . . .

A judge is not required to automatically

disqualify himself from a lawsuit simply because a litigant is
displeased with the judge’s previous adverse rulings . . . .”);
Davis, 2002 WL 1009728, at *5 (“[The moving party’s] only support
for his contention [of judicial bias] comes from his unsupported
conclusion based upon his disagreement with the orders of the
Court. . . . Without considering [the moving party’s] speculations
and conclusions, there is nothing left to support his claim that
adverse rulings are evidence of the [judge’s] alleged bias.”).
“Similarly, a judge’s efforts at docket management are not a basis
for recusal.” McSwain, 2014 WL 12495108, at *1 (citing Liteky, 510
U.S. at 556); see also id. (noting that recusal motions predicated
on judicial efforts to control litigation “‘not only threaten[]
limitless

gamesmanship

but

[also

imperil]

the

fearless

administration of justice’” (quoting Belue, 640 F.3d at 574)).3

3

In the area of docket management (as well as legal rulings),
the instant Motion grouses that the undersigned “Magistrate [Judge]
and Judge Biggs have not addressed [Plaintiff’s] claims in the
original complaint, leaving them to stale at [his] expense.”
(Docket Entry 153 at 5 (internal citation omitted); see also id. at
5-6 (“The supplementations and amendments [that Plaintiff has
(continued...)
-10-

Ultimately (as another member of the Court once expressed in
denying an analogous motion), to the extent Plaintiff has “ma[de]
statements about the [undersigned] Magistrate Judge’s motivation,
[Plaintiff’s] affidavit does not provide any factual support for

3

(...continued)
proposed and the Court has denied] are not ‘new claims,’ as the
[undersigned] Magistrate [Judge] suggests.
They are the same
claims that . . . the U.S. District Court has failed to address
. . . .”).) As the Court (per Judge Biggs) recently detailed in
debunking the same basic argument raised in another of Plaintiff’s
filings, his assertion that the Court “has erroneously not
addressed [his] claims” (Docket Entry 182 at 1-2 (internal
quotation marks omitted)), such as “‘that he was being denied the
“Right to Equal Protection Under the Law,” [was] denied the “Right
to Access to Counsel,” and [was] being denied the “Right to Due
Process of the Law,” [by] being sent to prison without any
judgment, conviction, or sentence’” (id. at 2 (quoting Docket Entry
160 at 1, in turn citing Docket Entry 2 at 5)), “miss[es] the mark”
(id.). (See id. at 6-8 (showing that, although “Plaintiff’s recent
filings continually return to the notion that his purported ‘claims
were unaddressed by the Court and . . . have been left to stale,’”
that “newly raised and oft-repeated contention lacks merit,”
because (A) “Plaintiff’s Complaint fails to raise viable claims for
denial of [his] Right to Equal Protection Under the Law, Right to
Access to Counsel, and Right to Due Process of Law,” instead
“identif[ying] th[o]se alleged denials as [his] injuries, arising
from his sole claim for a 4th Amendment violation[ of] illegal
search and seizure,” as to which injuries he made only “conclusory
allegations . . . [which] fail as a matter of law,” and (B) “as
even Plaintiff concedes, [] Defendants named in his Complaint bear
no liability for his purported equal protection, due process, and
access to counsel claims,” and “[y]et, [he] failed to move to amend
his Complaint to add [any] relevant defendants prior to the
deadline for requesting leave to add parties,” but rather “waited
more than two years after that deadline, following both the close
of discovery and the filing of his initial trial brief, to seek
leave to amend his pleadings” (internal brackets, citations,
ellipses, and some internal quotation marks omitted) (quoting
Docket Entry 147 at 1)).) In any event, the Court’s handling of
those matters neither manifests bias/prejudice against Plaintiff
(or for another party) nor could cause a reasonable person to
reasonably question the Court’s impartiality, as required for
recusal under Sections 144 and 455(a) and (b)(1).
-11-

such allegations, he does not explain how he came into possession
of personal knowledge of the [undersigned] Magistrate Judge’s
motivation, and [Plaintiff] provides no evidence from which any
such inferences could be drawn.”
1:11CV193,

2013

WL

3716872,

(unpublished) (Eagles, J.).

at

Burgess v. eBay, Inc., No.
*2

(M.D.N.C.

July

12,

2013)

“Such conclusory allegations do not

constitute the clear averments or statement of facts required to
support a motion for recusal and thus are insufficient to justify
disqualification.”

Okocha, 2007 WL 1074664, at *4 (internal

quotation marks omitted); see also Hill v. United States, Nos.
1:13CR435, 1:17CV1036, 2019 WL 7372962, at *1 n.1 (M.D.N.C. Dec.
31, 2019) (unpublished) (Schroeder, C.J.) (“[T]his court need not
recuse itself because of unsupported, irrational, or highly tenuous
speculation
p]etitioner’s

which

has

litigation

become

a

strategy.”

central

component

(internal

of

quotation

[the
marks

omitted)), appeal dismissed, 831 F. App’x 626 (4th Cir. 2020),
cert. denied, ___ U.S. ___, 142 S. Ct. 515 (2021).4

4

The above-discussed considerations would equally justify
denial of Plaintiff’s demand for disqualification of Judge Biggs;
however, “[m]otions seeking recusal and disqualification are
generally entertained by the challenged judge,” Davis, 2002 WL
1009728, at *1; see also Okocha, 2007 WL 1074664, at *4 (“A judge
against whom an affidavit under § 144 is filed must pass upon the
legal sufficiency of the facts alleged.” (internal quotation marks
omitted)); 28 U.S.C. § 455(a) & (b) (indicating that judge should
decide whether to “disqualify h[er]self”). Accordingly, this Order
will defer consideration of the portion of the instant Motion that
requests Judge Biggs’s recusal, so that she can review that matter.
-12-

CONCLUSION
Plaintiff did not comply with the Local Rules when he filed
the instant Motion and, even if the Court excused that noncompliance, his recusal request would fall short as a matter of law
(although Judge Biggs remains best-suited to rule on the demand for
her disqualification).
IT IS THEREFORE ORDERED that the instant Motion (Docket Entry
153) is DENIED IN PART AND DEFERRED IN PART, in that Plaintiff’s
request for recusal of the undersigned Magistrate Judge is denied
and Plaintiff’s request for recusal of Judge Biggs is deferred.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
April 22, 2022

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