Shareef v. Donahoe et al

Filing 50

ORDER denying 42 Motion for Case Reassignment. Signed by Magistrate Judge David Keesler on 5/1/2013. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:11-CV-615-DCK
KIMBERLY F. SHAREEF,
Plaintiff,
v.
PATRICK R. DONAHOE,
Postmaster General, U.S. Postal Service,
Defendant.

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ORDER

THIS MATTER IS BEFORE THE COURT on “Plaintiff’s Request For Case
Reassignment” (Document No. 42). The parties have consented to Magistrate Judge jurisdiction
pursuant to 28 U.S.C. § 636(c), and immediate review of this motion is appropriate. Having
carefully considered the motion, the record, and applicable authority, the undersigned will deny
the motion.
BACKGROUND
Kimberly F. Shareef (“Plaintiff” or “Shareef”), appearing pro se, filed her “Complaint”
(Document No. 1) on December 5, 2011. On February 10, 2012, “Defendant’s Motion To
Dismiss and Incorporated Memorandum” (Document No. 10) was filed with the Court. Plaintiff
filed responses to the motion to dismiss (Document Nos. 11 and 12) on February 17, 2012 and
February 21, 2012. Defendant’s reply brief (Document No. 13) was filed on March 7, 2012;
then on March 19, 2012, Plaintiff filed a sur-reply (Document No. 14).
On March 20, 2012, the Honorable Frank D. Whitney (“Judge Whitney”) issued an
“Order” (Document No. 15), noting that “sur-replies are not permitted under the Rules of this
Court,” and denying in part and granting in part the motion to dismiss. Specifically, the Court

held that the claims against individual Defendants David Mills and Rodney K. Deflumeri must
be dismissed, but that her Complaint was timely filed. (Document No. 15).
The parties filed a “Certification And Report Of Initial Attorneys Conference”
(Document No. 23) on May 8, 2012. In that report, the parties indicated that settlement in this
case “is likely” and “may be enhanced by” a “Mediated Settlement Conference . . . after the
completion of discovery – by February 28, 2013.” (Document No. 23, p.2). The parties did not
request a judicial settlement conference, or express any concerns or questions about alternative
dispute resolution (“ADR”). (Document No. 23).
Defendant’s “Motion For Pretrial Hearing On Federal Defendant’s 12(b)(1) Defense Of
Lack Of Subject Matter Jurisdiction” (Document No. 20) was filed on April 17, 2012.
“Plaintiff’s Response In Opposition to Motion Dismiss…” (Document No. 21) was filed on May
4, 2012, but did not indicate any opposition to a hearing on the motion. Defendant filed a
“Notice Of Intent To File No Reply” (Document No. 22) on May 8, 2012.
Judge Whitney entered a “Case Management Order” (Document No. 24) on May 9, 2012.
The “Case Management Order” set the following pertinent deadlines: Discovery Completion –
November 6, 2012; ADR – November 20, 2012; and Dispositive Motions – December 4, 2012.
(Document No. 24).
On June 6, 2012, the parties filed a “Joint Stipulation Of Consent To Exercise
Jurisdiction By A United States Magistrate Judge” (Document No. 25) in accordance with 28
U.S.C. 636(c) and Rule 73(b) of the Federal Rules of Civil Procedure. The parties’ “Joint
Stipulation…,” signed by Plaintiff, states that the parties consent to a United States Magistrate
Judge conducting “any and all further proceedings in this case.” (Document No. 25).

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“Plaintiff’s Request To Waive Alternative Dispute Resolution Fee” (Document No. 38)
was filed on October 22, 2012. This filing was not captioned by Plaintiff, or docketed by the
Court, as a pending motion. (Document No. 38). Moreover, there was no contemporaneously
filed brief, and no response in opposition, or reply in support of “Plaintiff’s Request To Waive
Alternative Dispute Resolution Fee” were ever filed with the Court pursuant to Local Rule 7.1
(E). See also Local Rule 7.1 (C).
On October 26, 2012, the undersigned issued an “Order” (Document No 39) that
extended the case deadlines, including the mediation deadline;

denied without prejudice

“Plaintiff’s Request For Motion To Compel / Defendants Failure To Produced Documents”
(Document No. 32); and ordered the parties to appear on November 15, 2012, for a “Status And
Motions Hearing.”1
Following the hearing on November 15, 2012, the Court granted Defendant’s “Motion
For Pretrial Hearing On Federal Defendant’s 12(b)(1) Defense Of Lack Of Subject Matter
Jurisdiction” (Document No. 20). (Document No. 40). The undersigned specifically opined:
For the reasons stated at the hearing, as well as those stated
in Defendant’s presentation at the hearing and in its written
motion, the undersigned finds good cause to grant the pending
motion. As a result, to the extent the Complaint (Document No. 1)
attempts to assert claims pursuant to 42 U.S.C. §1985 and/or tort
claims such as slander, false accusations, false reports and/or
misrepresentations, those claims are dismissed. However, as
discussed at the hearing, Plaintiff’s claims pursuant to Title VII,
including retaliation, and discrimination on the basis of race,
gender, religion, and color, and/or claims of age discrimination,
will all survive until otherwise ordered by this Court.
Id.

The undersigned granted the parties’ “Stipulation For Extension Of Discovery Cutoff To May 6, 2013”
(Document No. 43), thus extending the discovery deadline to May 6, 2013, and the dispositive motions
deadline to June 5, 2013. (Document No. 44). This matter is scheduled for trial, if necessary, during the
civil term beginning August 19, 2013. (Document No. 39).
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Apparently, the parties also conducted a Mediated Settlement Conference with Mediator
Gary S. Hemric on November 15, 2012. (Document No. 41). Mr. Hemric filed a mediation
report with the Court on November 19, 2012, indicating that the parties had reached an impasse
and failed to resolve their dispute. Id. The undersigned notes that the parties’ mediation was
held more than four (4) months prior to the revised mediation report deadline. See (Document
No. 39).
On February 19, 2013, “Plaintiff’s Request For Case Reassignment” (Document No. 42)
was filed with the Court. “Federal Defendant’s Response In Opposition To Plaintiff’s Request
For Case Reassignment” (Document No. 45) was timely filed on March 8, 2013; and “Plaintiff’s
Reply To Defendant’s Opposition To Plaintiff’s Request For Case Assignment” (Document No.
49) was timely filed on April 1, 2013. As such the pending motion is now ripe for disposition.
STANDARD OF REVIEW
“Plaintiff’s Request For Case Reassignment” fails to cite any legal authority supporting
reassignment of this case.

(Document No. 42).

However, both the “Federal Defendant’s

Response…,” and “Plaintiff’s Reply…,” identify 28 U.S.C. § 455(a) as the guiding authority on
whether a federal judge should disqualify himself or herself from a proceeding. (Document No.
45, p.2; Document No. 49, p.4). Under the circumstances, the undersigned agrees that § 455(a)
is applicable here. See Clay v. Brown, Hopkins & Stambaugh, 892 F.Supp. 11, 13 (D.D.C.
1995) (“appropriate procedure for challenging the impartiality of a judge is through a motion for
recusal pursuant to 28 U.S.C. § 455”).
The Court finds the following recent analysis of this standard by the United States
District Court for the District of South Carolina to be instructive.
Recusal of federal judges is generally governed by 28
U.S.C. § 455. . . . That statute provides that “[a]ny justice, judge,
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or magistrate judge of the United States shall disqualify himself in
any proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). In the Fourth Circuit, this
standard is analyzed objectively by considering whether a person
with knowledge of the relevant facts and circumstances might
reasonably question the judge's impartiality. United States v.
Cherry, 330 F.3d 658, 665 (4th Cir. 2003). For purposes of this
statute, the hypothetical “reasonable person” is not a judge,
because judges, who are trained to regard matters impartially and
are keenly aware of that obligation, “may regard asserted conflicts
to be more innocuous than an outsider would.” United States v.
DeTemple, 162 F.3d 279, 287 (4th Cir. 1998).
Section 455(a) does not require recusal “simply because of
unsupported, irrational or highly tenuous speculation,” or because
a judge “possesses some tangential relationship to the
proceedings.” Cherry, 330 F.3d at 665 (internal quotation
omitted). The Fourth Circuit recognizes that overly cautious
recusal would improperly allow litigants to exercise a “negative
veto” over the assignment of judges simply by hinting at
impropriety. DeTemple, 162 F.3d at 287. Recusal decisions under
28 U.S.C. § 455(a) are “fact-driven and may turn on subtleties in
the particular case.” Holland, 519 F.3d at 912.
The statute provides a list of specific instances where a
federal judge's recusal is mandated, regardless of the perception of
a reasonable observer. 28 U.S.C. § 455(b). For instance, a judge
is disqualified “[w]here he has a personal bias or prejudice
concerning a party.” 28 U.S.C. § 455(b)(1). … Bias or prejudice
must be proven by compelling evidence. Brokaw v. Mercer Cnty.,
235 F.3d 1000, 1025 (7th Cir. 2000).
Assa’ad-Faltas v. South Carolina, 2012 WL 3466936 at *1-2 (D.S.C. Aug. 15, 2012).
Fundamental principles of due process require that the
judge being accused of bias be given an opportunity to
respond. Where litigants have attempted to bypass the trier
of fact and in the first instance have sought to raise the
issue of bias before an appellate court, they have generally
been rebuffed. . . . “Recusal is a highly personal decision.
The judge must assess the truth of the facts alleged and
determine if they would impeach his impartiality or
appearance of impartiality.... This is not a decision that an
appellate panel may make for a district court judge in the
first instance.” Id. at 1301.

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Brown, Hopkins & Stambaugh, 892 F.Supp. at 13 (internal citations omitted); see also, Southern
Agriculture Co. v. Dittmer, 568 F.Supp. 645, 646 (D.C.Ark. 1983) (citing 28 U.S.C. § 455)
(“Once a matter has been referred to a magistrate under his dispositive jurisdiction, he effectively
becomes the district judge for that case. Removal of a magistrate from a case should then be
governed by the same rules as a district judge where recusal becomes an issue.”).
DISCUSSION
Plaintiff asserts that this action should be reassigned from the undersigned magistrate
judge back to Judge Whitney. (Document No. 42, p.1). Based on “the various reasons stated [in
her request], the Plaintiff feels that [] Judge Keesler will not be fair and impartial to her case.”
The undersigned respectfully disagrees that there is any evidence of impartiality, or bias toward
pro se litigants, and will attempt to address in turn each of Plaintiff’s “various reasons” she feels
the undersigned “will not be fair and impartial to her case.” (Document No. 42, p.3).
A. Ruling On Defendant’s Motion For Hearing And Partial Dismissal
First, Plaintiff suggests that the undersigned’s handling of Defendant’s “Motion For
Pretrial Hearing On Federal Defendant’s 12(b)(1) Defense Of Lack Of Subject Matter
Jurisdiction” (Document No. 20) was improper, and that the Court failed to appropriately
consider and/or respond to “Plaintiff’s Response In Opposition to Motion Dismiss…”
(Document No. 21). (Document No. 42, p.1). As noted above, the undersigned reached a
decision on that motion after considering the parties’ briefs and their arguments at a status and
motions hearing on November 15, 2012. (Document No. 40).
The undersigned observes that hearings in civil lawsuits are fairly rare in this Court, as
such, rather than suffering bias, the record indicates that Plaintiff was allowed ample opportunity
to voice her opposition to Defendant’s motion for partial dismissal, both in her written response

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(Document No. 21), and in person. The fact that Plaintiff disagrees with the Court’s “Order”
(Document No. 40) deciding Defendant’s “Motion For Pretrial Hearing On Federal Defendant’s
12(b)(1) Defense Of Lack Of Subject Matter Jurisdiction” (Document No. 20) is not sufficient
evidence of bias or prejudice to warrant recusal.
B. Alleged Violations Of The Federal Rules Of Civil Procedure
Next, Plaintiff suggests that the undersigned has unevenly applied the Federal Rules of
Civil Procedure by ignoring multiple alleged violations of the Rules by Defendant. (Document
No. 42, pp.1-2). Plaintiff asserted a similar position in her “Motion To Strike” (Document No.
47). As addressed in the undersigned’s “Order” (Document No. 48) denying the “Motion To
Strike,” it appears (understandably) that Plaintiff was not previously familiar with Fed.R.Civ.P.
6(b), which allows a party an additional three (3) days to serve a response. Moreover, the civil
docket for this case generally provides the due date for responses and replies, and it does not
appear that Defendant’s filings have been inconsistent with the deadlines set forth on the docket.
If there has been any extra leniency in this case it has been in favor of Plaintiff who early in this
litigation filed multiple responses, and a sur-reply, without leave of the Court. (Document Nos.
11-12, 14).
C. Request To Waive Mediation Fees
Plaintiff also contends that the Court’s failure to respond to her “…Request To Waive
Alternative Dispute Resolution Fee” (Document No. 38) is evidence of bias. As noted above,
that request was never construed as a pending motion by the Court, or fully briefed by the
parties. It may be that “Plaintiff’s Request to Waive…” was not construed as a pending motion
by the Clerk’s office because it did not include a contemporaneously filed brief, as required by
Local Rule 7.1 (C). It appears that at or about the time Plaintiff filed her request to waive ADR

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fees, Plaintiff entered into an “Agreement For Mediation Services” with Defendant and Mediator
Gary Hemric that included a statement regarding the fees and costs the parties agreed to pay Mr.
Hemric. (Document No. 38-1). To date, Plaintiff has failed to identify any authority to support
her contention that the Court could have, or should have, waived her mediation fees. See
(Document Nos. 38 and 42). Plaintiff has not cited any legal authority, and the undersigned is
unaware of any authority, that would allow the Court to require a private mediator such as Mr.
Hemric to waive his fees.
When Plaintiff filed her “…Request To Waive Alternative Dispute Resolution Fee”
(Document No. 38) on October 22, 2012, she described the mediation date as “tentative.” The
record also indicates that before participating in mediation on November 15, 2012, Plaintiff
knew a status and motions hearing was scheduled with the Court on that same date, and knew
that the mediation deadline had been extended by several months to March 20, 2013. See
(Document No. 39). Under such circumstances, it is unclear why Plaintiff agreed to participate
in a mediation she allegedly could not afford, especially if she expected the Court to address an
issue related to that mediation. Plaintiff’s decision to go ahead with early alternative dispute
resolution with a private mediator, and incur expenses that she had accepted in a written
agreement, cannot be reasonably construed as supporting claims of bias or impartiality by the
undersigned.
In hindsight, it is regrettable that Plaintiff’s “…Request To Waive Alternative Dispute
Resolution Fee” (Document No. 38) was not fully briefed; however, Plaintiff’s argument that
she was “forced” to go forward with mediation she could not afford is not persuasive.
(Document No. 42, p.2). Even if Plaintiff’s request had been construed as a motion and properly
briefed, it is very unlikely that it would have been “ripe” and decided before the date the parties

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chose to mediate. Neither in the “Certification And Report Of Initial Attorneys Conference”
(Document No. 23), nor at any time since that filing, did either party request a judicial settlement
conference, or any assistance identifying mediator.
D. Extension Of Case Deadlines
Plaintiff further suggests that by allowing the “Federal Defendant’s Motion To Extend
Discovery” (Document No. 35), “despite the Plaintiff’s opposition,” the undersigned was
somehow biased or impartial.

(Document No. 42, p.2).

The undersigned observes that

Defendant’s request for an extension of the discovery deadline was thoroughly briefed by both
parties and was only granted after “[h]aving carefully considered the motion, the record, and the
applicable authority.” (Document No. 39). Plaintiff’s instant motion fails to explain how she
suffered any significant prejudice by the extension of certain case deadlines, or how allowing
such an extension is evidence of bias or impartiality. At the time the Court revised these case
deadlines, including the discovery deadline which was less than two weeks away, the lawsuit
was still operating under Judge Whitney’s original “Case Management Order” (Document No.
24), even though the parties had subsequently consented to magistrate judge jurisdiction. Again,
the fact that a party disagrees with a ruling by a judge is not, without more, evidence that is
likely to cause a reasonable person to question a judge’s impartiality.
Plaintiff’s argument here is even less compelling in the context of recent events.
Although Plaintiff now asserts that allowing an extension of deadlines on October 26, 2012 was
somehow an example of bias or impartiality, just a few weeks after filing the instant motion, the
parties filed a “Stipulation For Extension Of Discovery…” on March 4, 2013, that further
extended the discovery deadline until May 6, 2013. See (Document No. 42, p.2; Document No.
43).

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E. Status And Motions Hearing
Finally, Plaintiff argues that because the undersigned “mentioned that Attorney James
Sullivan was a ‘good man’ and welcomed him back into his courtroom” at the hearing on
November 15, 2012, “the judge is biased to the Defendant.” (Document No. 42, p.2). Plaintiff
contends that such a statement “implied to the Plaintiff that all future testimony [from] the
Defendant will be viewed as true statements, without having to provide proof for his defense.”
Id. The undersigned respectfully disagrees that anything said or done at the hearing supports a
finding that the undersigned cannot be fair and impartial. At the time of the hearing, Plaintiff
expressed little, if any, opposition to Defendant’s motion, and expressed no concern that she was
being treated unfairly or was not allowed ample opportunity to address the Court.
What Plaintiff describes in her final argument is nothing more than a very brief exchange
of courtroom pleasantries. Mr. Sullivan is a long-time employee of the United States Attorney’s
office and has appeared before this Court on numerous occasions. At the hearing on November
15, 2012, the undersigned welcomed Mr. Sullivan, as well as Plaintiff, just as is done repeatedly
in this Court and courts all over this country. Plaintiff can be assured that the undersigned has no
personal relationship with Defendant’s counsel other than through routine Court duties.
For a judge to welcome an attorney “back into his courtroom” and refer to him as a “good
man” is simply not the kind of conduct that would lead “a person with knowledge of the relevant
facts and circumstances [to] reasonably question the judge's impartiality.” See Cherry, 330 F.3d
658, 665 (4th Cir. 2003). The undersigned is aware of two cases where a party argued for
disqualification pursuant to 28 U.S.C. § 455 because the presiding judge referred to someone as a
“fine man.” See Assa’ad-Faltas v. South Carolina, 2012 WL 3466936 at *2; In re Diana R.

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Beard, 811 F.2d 818, 828-829 (4th Cir. 1987). In each instance, the courts held that calling
someone a “fine man” was not sufficient cause for recusal. Id.
Plaintiff also contends that “Judge Keesler made complementary statements to Attorney
James Sullivan” at the close of the hearing. (Document No. 42, p.2). In fact, it was Plaintiff the
undersigned complimented at the conclusion of the hearing, stating to her “Ms. Shareef, you did
very well, good job,” to which she responded, “thank you very much, sir.”
CONCLUSION
“We as judges take great pains to afford every litigant due process of law.” Brown,
Hopkins & Stambaugh, 892 F.Supp. at 15. “Indeed, in actions brought by pro se plaintiffs . . .
the judicial system leans over backward to afford them every opportunity to be heard.” Id. Such
is the case with this judge in this lawsuit. It is regrettable that Plaintiff feels she has been treated
unfairly, but the undersigned does not find that her “various reasons” provide sufficient support
for recusal. As noted above, the record of this case actually shows that Plaintiff has had ample
opportunity to be heard. Moreover, it appears that the crux of Plaintiff’s case against Defendant
is intact, and that her remaining claims involving discrimination and retaliation are still pending
and will likely be decided following a summary judgment motion or trial. Plaintiff should be
assured that the undersigned has, and will continue to, preside over this matter without any bias
or impartiality.
IT IS, THEREFORE, ORDERED that “Plaintiff’s Request For Case Reassignment”
(Document No. 42) is DENIED.
Signed: May 1, 2013

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