Shareef v. Donahoe et al

Filing 93

ORDER denying 90 Motion for Case Reassignment. Plaintiff shall file a response to the Federal Defendants Motion To Dismiss Or, In The Alternative, For Summary Judgment (Document No. 62) on or before November 15, 2013. Signed by Magistrate Judge David Keesler on 11/4/2013. (Pro se litigant served by US Mail.)(tmg)

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 “Motion For Case
Reassignment” (Document No. 90) filed on October 31, 2013. 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 and the record, the undersigned
will deny the motion.
Plaintiff’s motion states that she has filed “Judicial Misconduct Complaints” against the
presiding judge and his law clerk. (Document No. 90, p.1). Plaintiff further asserts that she
believes that the presiding judge “has a strong and longstanding bias towards the Defendant” and
“alleges that Judge Keesler has a deep-seated personal, bias against pro se litigants.” Id.
On November 1, 2013, the undersigned granted “Plaintiff’s Motion To Stay Further
Proceedings Pending Case Reassignment” (Document No. 91). (Document No. 92). In that
“Order” the undersigned determined that it was appropriate to “refrain from ruling on Plaintiff’s
‘Motion For Case Re-Assignment’ (Document No. 90) until the Chief Circuit Judge of the
Fourth Circuit has reached an initial decision on Judicial Complaint No. 04-13-90112” and as
such, there was “good cause to allow ‘Plaintiff’s Motion To Stay…’ pending a ruling on the

‘Motion For Case Re-Assignment.’” Id. The Court also advised Plaintiff “to be prepared to file
a response to the ‘Federal Defendant’s Motion To Dismiss Or, In The Alternative, For Summary
Judgment’ (Document No. 62) soon after the Court rules on Plaintiff’s ‘Motion For Case ReAssignment’ (Document No. 90).”
On November 1, 2013, the undersigned received a copy of a “Memorandum And Order”
issued by Chief Judge William B. Traxler, Jr. regarding In the Matter of a Judicial Complaint
Under 28 U.S.C. § 351, No. 04-13-90112. That “Memorandum And Order” dismissed Plaintiff’s
Judicial Complaint against the undersigned. In pertinent part Chief Judge Traxler’s decision
states:
Complainant’s allegations are directly related to the merits of the
magistrate judge’s rulings and contain no facts suggesting that the
decisions were improperly motivated or the result of misconduct.
Nothing in the record suggests bias or misconduct on the part of
the judge. The complainant’s objections to the court’s factual and
legal reasoning and conclusions and to the court’s procedures are
not the proper subject of a judicial misconduct complaint but must
instead be pursued through appeal.
In the Matter of a Judicial Complaint Under 28 U.S.C. § 351, No. 04-13-90112, p.3, Nov. 1,
2013. The undersigned notes that Plaintiff has in fact pursued at least some of her objections to
the undersigned’s rulings through appeal, and those appeals have been dismissed by the Fourth
Circuit. See (Document No. 88).
After careful review of Plaintiff’s “Motion For Case Re-Assignment” (Document No.
90), and in light of the Fourth Circuit’s decisions on both Plaintiff’s appeals and the allegations
of misconduct, the undersigned is not persuaded that re-assignment or recusal is appropriate or
necessary in this case. Again, Plaintiff has expressed objections to certain decisions by the
Court, but there is no support for her claim that the undersigned has a personal bias against this
Plaintiff or against pro se litigants in general. (Document No. 90).
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On May 1, 2013, the undersigned denied Plaintiff’s earlier “…Request For Case
Reassignment” (Document No. 42). (Document No. 50). In that decision, the undersigned
found the following analysis instructive:
Recusal of federal judges is generally governed by 28
U.S.C. § 455. . . . That statute provides that “[a]ny justice, judge,
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
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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.
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).
(Document No. 50, pp.4-6) (emphasis added).
Here, Plaintiff has failed to present any evidence, much less compelling evidence, of
personal bias or prejudice concerning a party. See Brokaw v. Mercer Cnty., 235 F.3d at 1025.
As in Brokaw v. Mercer, “the only evidence of bias [Plaintiff] presents consists of judicial
rulings. Moreover, those rulings do not demonstrate evidence of personal animosity or malice,
which is necessary to succeed on a Section 455(b)(1) motion.” Id.
As previously stated by the undersigned, the crux of Plaintiff’s case against Defendant is
intact, and her claims involving discrimination and retaliation are still pending and will likely be
decided by a summary judgment motion or trial. See (Document No. 50, p.11). Plaintiff’s
allegation that the undersigned has “pre-determined the outcome of Plaintiff’s civil complaint” is
simply without merit. (Document No. 90, p.9). The undersigned is prepared to carefully
consider Plaintiff’s response to the “Federal Defendant’s Motion To Dismiss Or, In The
Alternative, For Summary Judgment” (Document No. 62), as well as Defendant’s anticipated
reply brief in support of its motion, and to then apply the law without any bias or partiality.
IT IS, THEREFORE, ORDERED that Plaintiff’s “Motion For Case Reassignment”
(Document No. 90) is DENIED.

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IT IS FURTHER ORDERED that Plaintiff shall file a response to the “Federal
Defendant’s Motion To Dismiss Or, In The Alternative, For Summary Judgment” (Document
No. 62) on or before November 15, 2013. Failure to file a timely and persuasive response may
lead to Defendant being granted the relief it seeks, including dismissal of this lawsuit.

Signed: November 4, 2013

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