Robinson v. Pardee UNC Healthcare et al

Filing 12

ORDER denying Plaintiff's 10 Motion to "Remove of Judge Metcalf, False Statements Causing Harm, Irreversibly Damage," which the undersigned construes as a motion to recuse. Signed by Magistrate Judge W. Carleton Metcalf on 6/7/2021. (Pro se litigant served by US Mail.)(khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:20-cv-00372-MOC-WCM
MELVIN RICHARD ROBINSON, III,

)
)
Plaintiff,
)
)
v.
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PARDEE UNC HEALTHCARE and
)
SOUTHEASTERN SPORTS MEDICINE )
AND ORTHOPEDIC
)
)
Defendants.
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______________________________________ )

ORDER

This matter is before the Court on Plaintiff’s motion to “Remove of Judge
Metcalf, False Statements Causing Harm, Irreversibly Damage,” which the
undersigned construes as being a motion to recuse (the “Motion to Recuse,”
Doc. 10).1
I.

Relevant Background
A. First Case
On January 31, 2020, Plaintiff, proceeding pro se, filed a Complaint

naming “Brickton Village HOA (Lauren Koons)” and “LM Property” as the

Ruling on the Motion to Recuse by Order, rather than through the filing of a
Memorandum and Recommendation, is appropriate. See Cleveland v. South
Carolina, No. 8:17-cv-02922-RBH, 2017 WL 6498164, at *1 (D.S.C. Dec. 19,
2017)(motion to recuse magistrate judge and district judge considered a
nondispositive matter); Kiser v. Ferris, No. 2:04–1214, 2009 WL 1770084, at *1 (S.D.
W. Va. June 16, 2009)(recognizing a motion to recuse is a nondispositive matter).
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defendants and seeking to assert claims for alleged violations of the Fair
Housing Act. No. 1:20-cv-00030-MR-WCM, United States District Court,
Western District of North Carolina (the “First Case”). The Honorable Martin
Reidinger, Chief District Judge, is the presiding judicial officer for that case.
The undersigned has been assigned as the referral magistrate judge.
On September 25, 2020, the undersigned entered a Memorandum and
Recommendation recommending that a motion to dismiss by the defendants be
granted and that the First Case be dismissed. First Case, Doc. 18. Plaintiff’s
objections to that recommendation were overruled on December 30, 2020, and
judgment was entered that same day. First Case, Docs. 22 & 23.
On January 7, 2021, Plaintiff filed a “Motion to Amend Due to Case
Dismissed.” First Case, Doc. 24. Plaintiff also filed a Notice of Appeal. Doc. 25.
On February 9, 2021, Plaintiff filed a second “Motion to Amend Due to
Case Dismissed.” First Case, Doc. 32.
On May 14, 2021, the undersigned issued a Memorandum and
Recommendation recommending that both motions to amend be denied. First
Case, Doc. 40.
On May 19, 2021, Plaintiff filed a document entitled “REQUEST TO
REMOVE JUDGE (sic) METCAL--REQUEST FOR A TIME EXTENSION
DUE TO INJURIES AND A SCHEDULED CAR ACCIDENT (sic) TRAIL IN
WEST PALM BEACH. I CAN ONLY FUNCTION 10-15 HOURS A WEEK
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AND CAN GIVE THE COURT ANY DOCUMENTS TO PROVE MY
DISABILITIES AND NEEDED EXTENDED TIME.” First Case, Doc. 41.
That motion, which appears at least in part to be an objection to the May 14,
2021 Memorandum and Recommendation, is currently pending before the
District Court.
B. Second Case
On December 14, 2020, Plaintiff, proceeding pro se, filed the instant
action. Doc. 1, the “Second Case.” The Honorable Max O. Cogburn, Jr, District
Judge, is the presiding judicial officer. The undersigned has been assigned as
the referral magistrate judge.
On January 11, 2021, following an initial review, the District Court
entered an Order that, among other things, dismissed Plaintiff’s Complaint
without prejudice. Doc. 4. A judgment was entered the same day. Doc. 5.
Plaintiff filed a notice of appeal on February 2, 2021. Doc. 6.
In an unpublished per curiam opinion issued on May 3, 2021, the Fourth
Circuit dismissed Plaintiff’s appeal and remanded the case. Doc. 9.
Plaintiff filed the Motion to Recuse on May 20, 2021.
II.

Discussion
In pertinent part, 28 U.S.C. § 455 provides:
(a) Any justice, judge, or magistrate judge of the
United States shall disqualify himself in any

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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 disputed
evidentiary facts concerning the proceeding....
The standard set out in §455(a) is analyzed “objectively by determining
whether a reasonable person with knowledge of the relevant facts and
circumstances might question the judge’s impartiality.” Jones v. Hill, No. 1:13–
cv–328–MR–DLH, 2014 WL 1155439, at *2 (W.D.N.C. March 21, 2014) (citing
United States v. Cherry, 330 F.3d 658, 665 (4th 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 also 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’”) (quoting In
re United States, 666 F.2d 690, 694 (1st Cir. 1981)).
“Bias or prejudice must be proven by compelling evidence,” Jones, 2014
WL 1155439, at *2 (citing Brokaw v. Mercer County, 235 F.3d 1000, 1025 (7th
Cir. 2000)), and should be “extrajudicial or personal in nature, and which
results in an opinion based on something other than what was learned from
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the judge’s participation in the case.” Jones, 2014 WL 1155439 at * 2 (citing
Lindsey v. City of Beaufort, 911 F.Supp. 962, 967-68 (D.S.C.1995)). Recusal is
not 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));
see also Sturdivant v. Kone Inc., No. 3:09cv224-RJC-DSC, 2010 WL 335586, at
*1 (W.D.N.C. Jan. 28, 2010) (“Unfavorable rulings to one party, with nothing
more, are not grounds for recusal”); Neville v. McCaghren, NO. 1:20-cv-00020MR-WCM, NO. 1:20-cv-00065-MR-WCM, 2020 WL 5650416, at *2 (W.D.N.C.
Aug. 24, 2020) (denying motion to recuse based on “conclusory allegations
based entirely on the Court's rulings in this case as evidence of the Court's bias
against him”).
Until now. the undersigned has not entered any Orders or taken any
action in the Second Case and Plaintiff has not identified any alleged source of
bias or prejudice. Rather, Plaintiff’s Motion to Recuse appears to be based
entirely on the undersigned’s rulings in the First Case. Recusal is not
appropriate on this basis.

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IT IS THEREFORE ORDERED that Plaintiff’s motion to “Remove of
Judge Metcalf, False Statements Causing Harm, Irreversibly Damage,” which
the undersigned construes as a motion to recuse (Doc. 10) is DENIED.

Signed: June 7, 2021

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