Jones v. Hill et al

Filing 78

ORDER denying without prejudice 48 Plaintiff's Motion for Summary Judgment as premature; denying 70 Plaintiff's Motion to Vacate Judge Howell's Orders and to disqualify him from this matter. IT IS FURTHER O RDERED that with the exception of filing responses to motions to dismiss, the Plaintiff shall make no further filings in this case pending a ruling on the Defendants motions to dismiss. Signed by District Judge Martin Reidinger on 03/21/2014. (Pro se litigant served by US Mail.)(thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:13-cv-328-MR-DLH

JUANITA L. JONES, a/k/a JUANITA
L. OWENS,

)
)
)
Plaintiff,
)
)
vs.
)
)
)
J. CALVIN HILL, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on the Plaintiff’s “Notice of Motion
and Motion by Plaintiff for Summary Judgment” [Doc. 48] and Plaintiff’s
“Motion to vacate March 17 orders denying motions numbered 18, 22, 27,
47, 32, and to disqualify or rescue [sic] Dennis Howell” [Doc. 70].
I.

PROCEDURAL BACKGROUND
The Plaintiff initiated this action on December 18, 2013, against

various state and municipal officials, alleging violations of her civil rights in
the course of certain state judicial proceedings. [Doc. 1]. In the three
months that this matter has been pending, the Plaintiff has filed over twenty
notices, motions, and other pleadings, many of which lacked any legal or

factual basis and at the minimum failed to comply with the Court’s Local
Rules and the Federal Rules of Civil Procedure. The Honorable Dennis L.
Howell, the United States Magistrate Judge assigned to this action in a
referral capacity, has entered a series of orders addressing many of the
Plaintiff’s filings and denying her various requests for relief. [See Doc. 16
(denying motion to enforce subpoenas); Doc. 59 (denying motion to
transfer state court action); Doc. 60 (denying motion for obstruction of
justice); Doc. 68 (denying motion for recusal); Doc. 69 (denying motion for
default judgment).
Most of the named Defendants have now appeared in this action and
have filed motions to dismiss the Plaintiffs’ action in its entirety. [See Docs.
34, 41, 52, 53, 66]. The Plaintiff has filed responses in opposition to all of
these motions but one, for which the time for responding has not yet
expired. [See Docs. 50, 49, 63, 64]. Although the motions to dismiss are
still pending, the Plaintiff has filed a motion seeking summary judgment on
all of her claims. [Doc. 48].
On March 18, 2014, the Plaintiff filed a motion seeking to vacate all of
Judge Howell’s prior Orders and requesting his recusal from this action

2

based upon the allegation that he is biased or prejudiced against the
Plaintiff. [Doc. 70].
II.

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
While the Plaintiff seeks summary judgment on all of her claims, there

are multiple motions to dismiss pending which, if granted, will dispose of
the Plaintiff’s action in its entirety. Accordingly, the Plaintiff’s motion for
summary judgment is premature.

The Court will deny this summary

judgment motion without prejudice to renewal, if appropriate, upon
resolution of the motions to dismiss.
II.

MOTION FOR RECUSAL
With respect to the Plaintiff’s motion to recuse, 28 U.S.C. § 455

governs disqualification of federal judges. In pertinent part, the statute
provides:
(a) Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any
proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
3

disputed
evidentiary
proceeding....

facts

concerning

the

Id.1
In the Fourth Circuit, the standard outlined in subsection (a) is
analyzed objectively by determining whether a reasonable person with
knowledge of the relevant facts and circumstances might question the
judge's impartiality. See United States v. Cherry, 330 F.3d 658, 665 (4th

1

The Plaintiff also seeks recusal under 28 U.S.C. § 144, which provides as follows:
Whenever a party to any proceeding in a district court 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 him or in favor of any adverse party, such
judge shall proceed no further therein, but another judge
shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the
belief that bias or prejudice exists, and shall be filed not less
than ten days before the beginning of the term at which the
proceeding is to be heard, or good cause shall be shown for
failure to file it within such time. A party may file only one
such affidavit in any case. It shall be accompanied by a
certificate of counsel of record stating that it is made in good
faith.

28 U.S.C. § 144. Some courts have held that a pro se litigant cannot seek recusal
under § 144 because it requires a certificate of “good faith” signed by a member of the
bar. See, e.g., Mathis v. Goldberg, No. DKC 12–1777, 2013 WL 1232898, at *1 (D. Md.
Mar. 25, 2013); aff’d, 538 F. App’x 310 (4th Cir. 2013); United States v. Rankin, 1
F.Supp.2d 445, 450 (E.D. Pa.1998), aff'd, 185 F.3d 863 (3d Cir. June 21, 1999);
Robinson v. Gregory, 929 F.Supp. 334, 338 (S.D. Ind. 1996). Even if the Plaintiff could
seek relief under this statute as a pro se litigant, however, the Plaintiff has not filed the
“timely and sufficient affidavit” required by the statute. Accordingly, the Court need not
address her request for relief under § 144.
4

Cir. 2003).

The “reasonable person” is a “well-informed, thoughtful

observer,” who is not “hypersensitive or unduly suspicious.” Rosenberg v.
Currie, No. 0:10–1555–DCN–PJG, 2010 WL 3891966, at *1 (D.S.C. Sept.
3, 2010) (quoting In re Mason, 916 F.2d 384, 386 (7th Cir.1990)); see
Cherry, 330 F.3d at 665 (quoting United States v. DeTemple, 162 F.3d 279,
287 (4th Cir. 1998) (“A presiding judge is not, however, required to recuse
himself simply because of ‘unsupported, irrational or highly tenuous
speculation.’”)).
Bias or prejudice must be proven by compelling evidence. Brokaw v.
Mercer County, 235 F.3d 1000, 1025 (7th Cir. 2000).

Additionally, the

movant must demonstrate a bias that is extrajudicial or personal in nature,
and which results in an opinion based on something other than what was
learned from the judge's participation in the case. Lindsey v. City of
Beaufort, 911 F.Supp. 962, 967 n.4 (D.S.C. 1995). “In other words, no
recusal is warranted if the alleged bias is ‘merely based upon the judge's
rulings in the instant case or related cases....’” Farmer v. United States,
Nos. 5:10-CR-271-FL-3, 5:12-CV-725-FL, 2013 WL 3873182, at *2-3
(E.D.N.C. July 25, 2013) (quoting United States v. Carmichael, 726 F.2d
158, 160 (4th Cir. 1984)).
5

Here, the Plaintiff has not met her burden of showing that recusal of
Magistrate Judge Howell is appropriate.

The Plaintiff has presented

nothing more than conclusory allegations of Judge Howell’s bias or
prejudice against her. Moreover, these conclusory allegations are entirely
based on Judge Howell’s rulings to date in this case. Accordingly, the
Plaintiff’s motion for recusal must be denied.
The Plaintiff’s practice of bombarding the Court with a multitude of
filings while other motions remain pending only serves to bottle up these
proceedings and keep the Court from addressing the merits of the case.
For these reasons, the Plaintiff shall refrain from filing any additional
motions until the Court can dispose of the issues that are already pending.

ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff’s summary
judgment motion [Doc. 48] is DENIED WITHOUT PREJUDICE as
premature until such time as the Defendants’ motions to dismiss are
resolved.

6

IT IS FURTHER ORDERED that the Plaintiff’s motion to vacate
Judge Howell’s Orders and to disqualify him from this matter [Doc. 70] is
DENIED.
IT IS FURTHER ORDERED that with the exception of filing
responses to motions to dismiss, the Plaintiff shall make no further filings in
this case pending a ruling on the Defendants’ motions to dismiss.
IT IS SO ORDERED.

Signed: March 21, 2014

7