Anderson v. Davita Upstate Dialysis Center et al

Filing 16

ORDER RULING ON REPORT AND RECOMMENDATION denying 15 Motion for Recusal filed by Benjamin Lewis Anderson, adopting 10 Report and Recommendation. Signed by Honorable Mary G Lewis on 5/28/15. (alew, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
GREENVILLE DIVISION
Benjamin Lewis Anderson,
Plaintiff,
v.
Davita Upstate Dialysis Center and Carolina
Nephrology,
Defendants.
__________________________________

) Civil Action No.: 6:15-cv-1706
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ORDER AND OPINION
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Plaintiff Benjamin Lewis Anderson (“Plaintiff”), proceeding pro se, brought this action
against Defendants Davita Upstate Dialysis Center and Carolina Nephrology
(“Defendants”). (ECF No. 1.)

The matter is before the Court on Plaintiff’s Motion for

Recusal. (ECF No. 15.) Also pending for review is the Report and Recommendation of the
United States Magistrate Judge recommending that this action be summarily dismissed
without prejudice and without service of process. (ECF No. 10.) The Report was made in
accordance with 28 U.S.C. § 636 and Local Civil Rule 73.02 for the District of South
Carolina.
STANDARD OF REVIEW
The Magistrate Judge makes only a recommendation to this Court.

The

recommendation has no presumptive weight, and the responsibility to make a final
determination remains with the Court. See Mathews v. Weber, 423 U.S. 261 (1976). The
Court is charged with making a de novo determination of any portion of the Report and
Recommendation of the Magistrate Judge to which a specific objection is made. The Court
may accept, reject, or modify, in whole or in part, the recommendation made by the
Magistrate Judge or recommit the matter to the Magistrate Judge with instructions. See
28 U.S.C. § 636(b).

ANALYSIS
The Magistrate Judge filed the Report and Recommendation on April 22, 2015,
recommending that Plaintiff’s claims be summarily dismissed for failure to state a claim.
(ECF No. 10.) Plaintiff filed objections on May 1, 2015, asserting that the Magistrate
Judge’s review of his complaint is flawed. (ECF No. 13.) Plaintiff argues that his complaint
states a conspiracy claim under 42 U.S.C. § 1985, against the above-referenced
Defendants, and indicates that the Magistrate Judge incorrectly analyzed his claim under
42 U.S.C. § 1983 only. The Court has carefully reviewed Plaintiff’s objections, the Report
and Recommendation, as well as the entire record in this case. Having done so, the Court
finds no error in the Magistrate Judge’s recommendation for summary dismissal.
The Court has conducted a careful and independent review of Plaintiff’s complaint
in light of the objections. Plaintiff apparently claims that in making alleged derogatory
statements toward him, Defendants conspired together to deprive Plaintiff of the equal
privileges of receiving dialysis treatment on the basis of race. (ECF No. 1.) In order to
maintain a conspiracy claim under 42 U.S.C. § 1985(3), Plaintiff must have evidence
showing: “(1) a conspiracy of two or more persons, (2) who are motivated by a specific
class-based, invidiously discriminatory animus to (3) deprive the plaintiff of the equal
enjoyment of rights secured by the law to all, (4) and which results in injury to the plaintiff
as (5) a consequence of an overt act committed by the defendants in connection with the
conspiracy." Simmons v. Poe, 47 F.3d 1370, 1376–1377 (4th Cir.1995). Liberally construing
Plaintiff’s claims, Plaintiff has presented insufficient factual allegations of any actionable
race or other class-based discrimination to state a cognizable claim under § 1985(3). See
Simmons v. Poe, 47 F.3d at 1376–77. Further, Plaintiff’s generalized, broad, and
conclusory allegations of conspiracy against the Defendants are insufficient to support a
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§ 1985 claim. See Simmons v. Poe, 47 F.3d at 1377 (conclusory allegations of a
conspiracy are insufficient to support a § 1985(3) claim). Accordingly, despite Plaintiff’s
objections, this action is still subject to summary dismissal.
Briefly, the Court will address Plaintiff’s motion for recusal recently filed in the abovereferenced case. Plaintiff claims that the judges’ analysis of his last two complaints are
biased, unjust, and in error. (ECF No. 15.) Plaintiff’s disagreement with a judge’s ruling,
or even the recommendation of the Magistrate Judge, does not provide a basis for
disqualification under the statutes governing recusal and disqualification of judges. Both
28 U.S.C. §§ 144 and 455(b)(1) require disqualification on the basis of a personal bias or
prejudice harbored by the judge against or in favor of one of the parties. This bias or
prejudice must generally derive from an extrajudicial source, i.e., a source outside of the
judicial proceeding at hand in order to disqualify a judge. Belue v. Leventhal, 640 F.3d 567,
572-573 (4th Cir. 2011). As the United States Supreme Court has instructed, “judicial
rulings alone almost never constitute a valid basis for a bias or partiality motion.” Liteky v.
United States, 510 U.S. 540, 555 (1994). Accordingly, Plaintiff’s motion for recusal (ECF
No. 15) is DENIED.
CONCLUSION
After a thorough review of the record in this case and the Report and
Recommendation of the Magistrate Judge pursuant to the de novo standard set forth
above, the Court adopts and incorporates the Report and Recommendation herein to the
extent it is consistent with this order. For the reasons set forth in the Magistrate Judge's
recommendation and for the reasons set forth above, It is therefore ORDERED that
Plaintiff's complaint be dismissed, without prejudice and without service of process.

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IT IS SO ORDERED.
/s/Mary G. Lewis
United States District Judge
May 28, 2015
Columbia, South Carolina

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NOTICE OF RIGHT TO APPEAL
Plaintiff is hereby notified of the right to appeal this Order within thirty days from the
date hereof, pursuant to Rules 3 and 4 of the Federal Rules of Appellate Procedure.

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