Bardes v. The US Courts, et al

Filing 25

MEMORANDUM OF DECISION AND ORDER denying Plaintiff's 7 Objections and Motion to Disqualify; granting 10 , 15 and 21 Motions to Dismiss. This action is dismissed with prejudice. Signed by District Judge Martin Reidinger on 8/8/2017. (Pro se litigant served by US Mail.)(kby)

THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:17-cv-00089-MR-DLH

DAVID A. BARDES, individually,
as taxpayer,

)
)
)
Plaintiff,
)
)
vs.
)
)
THE US COURTS,
)
THE UNITED STATES OF AMERICA, )
THE STATE OF SOUTH CAROLINA, )
COUNTY OF CHARLESTON,
)
CORRECT CARE SOLUTIONS, LLC, )
JOHN AND JANE DOE,
)
)
Defendants.
)
_______________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court for a sua sponte review of the
Plaintiff’s Complaint.

Also pending before the Court are the Plaintiff’s

“Objections and Motion to Disqualify” [Doc. 7]; the Motions to Dismiss filed
by the Defendants State of South Carolina, County of Charleston, and
Correct Care Solutions, LLC [Docs. 10, 15]; the Plaintiff’s “Objections and
Response” [Doc. 18] to the Defendants’ Motions to Dismiss; the United
States’ Motion to Dismiss [Doc. 21]; and the Plaintiff’s “Objections and

Motions in Opposition to Federal Government’s Edict” [Doc. 23]. For the
reasons stated below, this action will be dismissed.
I.

BACKGROUND
The Plaintiff brings this action against the United States Courts, the

United States of America, the State of South Carolina, the County of
Charleston, Correct Care Solutions, LLC, and John and Jane Doe pursuant
to 42 U.S.C. §§ 1983 and § 1985, seeking damages for injuries he allegedly
sustained as a result of “hypothermic torture” that he claims occurred while
he was being held as a detainee in the Charleston County Detention Center
in Charleston, South Carolina. [Doc. 1]. The Plaintiff, acknowledging that
he has filed several lawsuits regarding this matter in the past, incorporates
the allegations of his dismissed lawsuits into the present action and “claim[s]
every legal argument ever made, or could ever be made, and all case law in
the record, in [his] favor.” [Id. at 3].
II.

STANDARD OF REVIEW
Because the Plaintiff has paid the $400 fee associated with the filing of

this action, the statutory screening procedure authorized under the in forma
pauperis statute, 28 U.S.C. § 1915(e)(2), is not applicable. Nevertheless,
the Court has inherent authority to dismiss a frivolous complaint sua sponte.
See Ross v. Baron, 493 F. App’x 405, 406 (4th Cir. 2012) (noting that
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“frivolous complaints are subject to dismissal pursuant to the inherent
authority of the court, even when the filing fee has been paid”) (citing Mallard
v. United States Dist. Ct., 490 U.S. 296, 307-08 (1989)).
A complaint is deemed frivolous “where it lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); Adams
v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (“Legally frivolous claims are based
on an ‘indisputedly meritless legal theory’ and including ‘claims of
infringement of a legal interest which clearly does not exist.’”) (citation
omitted).
III.

DISCUSSION
A.

Plaintiff’s Action is Frivolous

The Plaintiff has previously filed at least four separate federal civil
actions based on the same allegations which form the basis of the Plaintiff’s
present suit. See Bardes v. Margera, No. 2:08-cv-00487-PMD (D.S.C.);
Bardes v. South Carolina, No. 2:10-cv-00559-PMD (D.S.C.); Bardes v. South
Carolina, No. 1:11-cv-00999-CCE-LPA (M.D.N.C.); and Bardes v. Auld, No.
1:15-cv-000-214-MR-DLH (W.D.N.C.).

The Plaintiff’s first action was

dismissed on its merits, and the subsequent actions were dismissed under
the principles of res judicata/collateral estoppel. For the same reasons and
based on the same authority cited in those decisions, the doctrines of res
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judicata and collateral estoppel also bar the Plaintiff from re-litigating those
issues in this case. “The patency of these barriers to this action renders it
legally frivolous.” Bardes v. South Carolina, No. 1:11-cv-00999-CCE-LPA,
2013 WL 3864405, at *2 (M.D.N.C. July 24, 2013).
In light of the Plaintiff’s decision to prosecute this matter himself without
the assistance of an attorney, the Court will further explain the basis of this
ruling. The Plaintiff originally filed his claim in the District of South Carolina.
That claim was dismissed on the merits by the Federal Court in South
Carolina. If that dismissal was in error, then the Plaintiff had one avenue to
challenge it: namely, appealing to the United States Court of Appeals for the
Fourth Circuit. Even if that original dismissal was grossly in error (which the
Plaintiff obviously feels it was), that does not give the Plaintiff the option of
re-filing that suit in another district or recasting the suit as a claim against the
participants in an earlier suit.
A final judgment is exactly that: final. Bringing this claim now for the
fifth time does not make that first judgment any less final. This Court has the
legal duty to abide by that first judgment, even if this Court were to believe
that it was in error or represented a miscarriage of justice. The only option
that the Plaintiff may possibly have is to have the South Carolina judgment
set aside – but that can be done only by the court in the District of South
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Carolina. This Court, sitting in the Western District of North Carolina, cannot
set aside a judgment of the District of South Carolina. This Court simply
does not have jurisdiction to do so.
For the reasons stated herein, the Court concludes that the Plaintiff’s
Complaint is frivolous and therefore subject to dismissal with prejudice.1
B.

Plaintiff’s Request for Recusal is Denied

The Plaintiff seeks the recusal of both the undersigned and Magistrate
Judge Howell. [Doc. 7]. Specifically, the Plaintiff argues that Judge Howell
and the undersigned “are forever soiled in the Torturegate Scandal.” [Doc.
1 at 5].
Title 28 of the United States Code, Section 455 governs the
disqualification of federal judges. In pertinent part, that 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:

Because the Court concludes that the Plaintiff’s Complaint is subject to dismissal as
being frivolous, the Court need not address the South Carolina Defendants’ alternative
request to transfer this matter to the District of South Carolina pursuant to 28 U.S.C. §
1404(a) for the convenience of the parties and witnesses and in the interest of justice.
[See Doc. 15].
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1

(1) Where he has a personal bias or prejudice
concerning a party, or personal knowledge of
disputed
evidentiary
facts
concerning
the
proceeding....
28 U.S.C. § 455.2
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 Cir. 2003).

The

2

Recusal of a federal judge is also governed by 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 the Plaintiff’s
request for recusal in the context of § 144.
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“reasonable person” is a “well-informed, thoughtful observer,” who is not
“hypersensitive or unduly suspicious.” Rosenberg v. Currie, No. 0:10-1555DCN-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-CR271-FL-3, 5:12-CV-725-FL, 2013 WL 3873182, at *3 (E.D.N.C. July 25,
2013) (quoting United States v. Carmichael, 726 F.2d 158, 160 (4th Cir.
1984)).
Here, the Plaintiff has not met his burden of showing that recusal of the
undersigned or Magistrate Judge Howell is appropriate. The Plaintiff has
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presented nothing more than conclusory allegations of the Court’s bias or
prejudice against him. It is clear that these conclusory allegations are entirely
based on the Court’s rulings to date in this case. Moreover, the actions to
which the Plaintiff cites as evidence of this Court’s bias are merely the result
of the Court’s application of the basic legal doctrine of res judicata. In other
words, this Court dismissed the Plaintiff’s suit because there are no other
legal alternatives available to the Court in light of the judgment against the
Plaintiff in the original South Carolina case. That is not bias; that is simply
following a basic legal principle.

Accordingly, the Plaintiff's request for

recusal must be denied.
C.

The Court May Impose a Pre-Filing Review System

As noted above, this is the second frivolous action that the Plaintiff has
filed in this Court. Litigants do not have an absolute and unconditional right
of access to the courts in order to prosecute frivolous, successive, abusive
or vexatious actions. See Demos v. Keating, 33 F. App’x 918, 920 (10th Cir.
2002); Tinker v. Hanks, 255 F.3d 444, 445 (7th Cir. 2002); In re Vincent, 105
F.3d 943, 945 (4th Cir. 1997). District courts have inherent power to control
the judicial process and to redress conduct which abuses that process.
Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001).

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The Plaintiff is hereby informed that future frivolous filings will result in
the imposition of a pre-filing review system. Cromer v. Kraft Foods N. Am.,
Inc., 390 F.3d 812, 818 (4th Cir. 2004); Vestal v. Clinton, 106 F.3d 553, 555
(4th Cir. 1997). If such a system is placed in effect, pleadings presented to
the Court which are not made in good faith and which do not contain
substance, will be summarily dismissed as frivolous. See Foley v. Fix, 106
F.3d 556, 558 (4th Cir. 1997). Thereafter, if such writings persist, the prefiling system may be modified to include an injunction from filings. In re
Martin–Trigona, 737 F.2d 1254, 1262 (2d Cir. 1984).
ORDER
IT IS, THEREORE, ORDERED that:
(1)

The Plaintiff’s filing entitled “Objections and Motion to Disqualify”
[Doc. 7] is DENIED;

(2)

The Defendants’ Motions to Dismiss [Docs. 10, 15, 21] are
GRANTED; and

(3)

This action is hereby DISMISSED WITH PREJUDICE.

The Clerk of Court is respectfully directed to close this civil action.
IT IS SO ORDERED.

Signed: August 8, 2017

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