Cook v. The Judges Who Issue Order in Case 16-1953 et al
ORDER ADOPTING 22 REPORT AND RECOMMENDATION. IT IS ORDERED that this case is DISMISSED. IT IS FURTHER ORDERED that this action shall be DEEMED A STRIKE pursuant to 28 U.S.C. §1915(g) for meeting the definition of a frivolous filing. Plaintiff's 13 Motion for Recusal is denied. Signed by Honorable R Bryan Harwell on 6/30/2017. (abuc)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
The Judges Who Issue Order in
Case 16-1953; Patricia S. Connor; Judge
Ralph Anderson; Annie Doe; S.C.D.C
General Counsel; Judge Harwell; Judge
Rogers, III; Judge Cain; Judge Gossett; The )
United States and other 192 Member States )
of the U.N.; All States or Territories That )
Allow Same-Sex Marriage; All Defendants )
Referred to and Listed in Case
Civil Action No.: 8:16-cv-3327-RBH
Plaintiff Anthony Cook (“Plaintiff”), currently incarcerated at Lieber Correctional Institution
(“Leiber”), and proceeding pro se, brought this action, which has been construed by the Magistrate
Judge as having been brought pursuant to 42 U.S.C. § 1983, because Plaintiff alleges that Defendants
have violated his constitutional rights. This matter is before the Court after issuance of the Report and
Recommendation (“R&R”) of United States Magistrate Judge Jacquelyn D. Austin, filed on December
15, 2016. [ECF #22]. This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1) and Local Civil Rule 73.02(B)(2)(e). In the R&R, the Magistrate Judge recommends
summary dismissal of Plaintiff’s Complaint. Plaintiff filed what has been construed as his objections
to the R&R on January 17, 2017. [ECF #30]. Prior to the issuance of the R&R, Plaintiff also filed a
Renewed Motion for Recusal. [ECF #13]. Plaintiff has filed several documents entitled, “Affidavit of
Facts Giving Judicial Notice”, as well. This matter is now before the Court for review.
Plaintiff filed this action on October 6, 2016, along with two other individuals, Yahya Muquit
and Lawrence L. Crawford. [ECF #1]. This voluminous Complaint appears, at best, to generally allege
fraud and violations of due process against Plaintiff on the part of one or more Defendants. [ECF #1].
On October 6, 2016, the Court issued a Break-Out and Proper Form Order directing that this case be
filed as separate actions for each named Plaintiff; accordingly, the only Plaintiff in this current lawsuit
is Anthony Cook. Despite the Court’s Order, Plaintiff has filed numerous documents purporting to be
filed on behalf of all original Plaintiffs. As best this Court can deduce from the voluminous, at times
unintelligible, and incoherent Complaint filed in this case, Plaintiff seeks to have a lawsuit wherein he
sought habeas relief pursuant to § 2254, Civil Action Number 8:14-3555-RBH-JDA, be reinstated, or
the decision in that case (summary judgment in favor of the Respondent) to be overturned. Plaintiff
further seeks this Court to reinstate one or more other actions, including Civil Action Number 0:062459 (former Plaintiff Lawrence L. Crawford’s case). Within his Complaint, Plaintiff appears to seek
removal of the related state court cases, and an order disqualifying all judges in the United States
District Court from hearing his case; instead, transferring this case and the above-cited related cases to
New Jersey. Plaintiff also seeks relief in the form of an order directing that he be sent to federal prerelease camp. Generally, Plaintiff alleges fraud on the part of several judges in the District Court,
including Judge Harwell and Judge Cain. He generally alleges his due process rights have been
violated, and he seeks to challenge any law contrary to God’s law that only heterosexuals have the right
to marry. The Magistrate Judge concluded Plaintiff was attempting to raise these same allegations but
found no legal basis to provide any of the requested relief
On November 14, 2016, Plaintiff filed a “Renewed” Motion for Recusal. [ECF #13]. This
Renewed Motion for Recusal alleges that Judge Austin and Judge Harwell must recuse themselves from
this case based upon a prior mandamus filing, as well as other miscellaneous filings. [ECF #13].
Further, Plaintiff alleges there is an unspecified jurisdictional issue with Judge Austin issuing the order
to break out the original Plaintiffs’ cases. [ECF #13, p. 5]. Plaintiff further requests an injunction
requiring the courts to provide him some unidentified copies of filings and to provide him a word
processor to type his legal documents. [ECF #13, p. 5]. Finally, Plaintiff requests a stay on two cases
until the conclusion of this case. [ECF #13, p. 6]. On December 15, 2016, Magistrate Judge Jacquelyn
D. Austin issued her Report and Recommendation (“R&R”) recommending that Plaintiff’s complaint
be summarily dismissed. [ECF #22]. Though voluminous in number of pages, the Magistrate Judge
reviewed the filings and determined there was no arguable basis for any requested relief. Plaintiff filed
his objections to this recommendation on January 17, 2017. This matter is now before the Court for
Standards of Review
Review of the Magistrate Judge’s Report & Recommendation
The Magistrate Judge makes only a recommendation to the Court. The recommendation has
no presumptive weight. The responsibility to make a final determination remains with the Court.
Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court is charged with making a de novo
determination of those portions of the report and recommendation to which specific objection is made,
and the Court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate
Judge, or recommit the matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). The
right to de novo review may be waived by the failure to file timely objections. Orpiano v. Johnson, 687
F.2d 44, 47 (4th Cir. 1982). The district court is obligated to conduct a de novo review of every portion
of the Magistrate Judge’s report to which objections have been filed. Id. However, the Court need not
conduct a de novo review when a party makes only “general and conclusory objections that do not direct
the [C]ourt to a specific error in the [M]agistrate’s proposed findings and recommendations.” Id. In
the absence of specific objections to the R & R, the Court reviews only for clear error, Diamond v.
Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court need not give any
explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis, 718 F.2d 198, 199200 (4th Cir. 1983).
II. Review of Pro Se Litigant’s Filing
In determining whether a prisoner petition should be dismissed under § 1915(d), district courts
should exercise discretion. Brown v. Briscoe, 998 F.2d 201, 203 (4th Cir. 1993). The district court
should dismiss the case if it is satisfied that it is based on clearly baseless factual allegations or a
indisputably meritless legal theory. Id. Pro se litigants, such as Plaintiff, are accorded liberal
construction and held to a less stringent standard in review of their pleadings than formal pleadings
drafted by attorneys. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even so, pro se pleadings remain
subject to summary dismissal, and district courts are not required to rewrite a petition or complaint to
include claims that have not been presented or construct Plaintiff’s legal arguments on his behalf. See
generally Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999); Small v. Endicott, 998 F.2d 411,
417-18 (7th Cir. 1993).
I. Motion for Recusal
The Magistrate Judge considered Plaintiff’s “Renewed” Motion for Recusal filed November 14,
2016 [ECF #13] and determined that Plaintiff did not provide, nor could she ascertain any discernible
basis upon which recusal or disqualification would be appropriate as to either herself or Judge Harwell.
Instead, Plaintiff continues to allege in his numerous filings that several judges have worked some
unspecified fraud upon the court. 28 U.S.C. § 455 governs when a justice, judge, or magistrate judge
of the United Status must disqualify himself or herself in a proceeding. None of the stated grounds are
present in this case, and Plaintiff does not otherwise allege or point to any appropriate ground for
recusal. See generally McBeth v. Nissan Motor Corp. U.S.A., 921 F. Supp. 1473, 1477 (D.S.C. April
12, 1996) (noting that the standard is “objective reasonableness” and is not to be construed with
requiring recusal on spurious or loosely based charges of partiality). Accordingly, this Court agrees
with the Magistrate Judge that the Motion for Recusal filed November 14, 2016 should be denied. [ECF
II. Review of Summary Dismissal
This Court’s independent review of Plaintiff’s Complaint reveals that he appears to be
dissatisfied with the outcome of a habeas petition action filed previously in this Court. Construing the
filing as liberally as possible, Plaintiff seeks reinstatement or consolidation of several cases, recusal of
several judges on a case, and transfer of this case to a different court. Plaintiff further requests to be
sent to a pre-release camp, makes generalized allegations about whether homosexuals have the right to
marry, and alleges unspecified fraudulent acts on the part of several judges, who he argues have violated
his due process rights. [ECF #1]. Plaintiff generally alleges collusion amongst several federal and state
court judges. The Magistrate Judge recommends summary dismissal of Plaintiff’s Complaint because
Plaintiff provides no arguable legal basis to support a determination that he raises any legitimate causes
of action. [ECF #22, p. 5].
On January 17, 2017, Plaintiff filed objections to the Magistrate Judge’s R&R. [ECF #30].
Within his objections, Plaintiff objects to the Magistrate Judge recommending that service not issue in
this case because it denies him “equal protection,” he objects to any claim this Court does not have
jurisdiction over, and he objects to “sua sponte” dismissal as improper. Plaintiff also attaches to his
objections a document he has styled as a habeas petition, wherein he objects to the “machination, fraud,
misrepresentation” in producing orders in this case and other related cases, he objects to the failure of
Judge Austin to recuse herself, and he objects to the suppression of a SLED investigation, which
appears to be related to a previous action. [ECF #30]. He further objects to the R&R’s direction to the
clerk of court that filings in this case should only be signed or on behalf of Plaintiff as a void order. This
Court has thoroughly reviewed the numerous pages filed by Plaintiff after the issuance of the R&R and
have considered the discernible arguments in Plaintiff’s objections to the R&R. The objections filed
by Plaintiff, are at best, generalized responses that mimic what he previously included in his Complaint.
In the absence of specific objections, this Court is only required to review the R&R for clear error. Even
so, this Court conducted a de novo review of the Magistrate Judge’s recommendation and considered
all pleadings filed by Plaintiff.
Under 28 U.S.C. § 1915, a district court may summarily dismiss an action that “fails to state a
claim on which relief may be granted, “ is frivolous or malicious,” or “seeks monetary relief against a
defendant who is immune from such relief.” This Court agrees with the Magistrate Judge that Plaintiff
fails to state a claim on which relief may be granted. Accordingly, this Court adopts the Report and
Recommendation prepared by the Magistrate Judge. This Court also agrees with the Magistrate Judge
that pursuant the Prison Litigation Reform Act, this action is frivolous; thus, it shall be deemed a strike
pursuant to the Prison Litigation Reform Act’s three-strike provision. See 28 U.S.C. § 1915(g); see also
Blakely v. Wards, 738 F.3d 607 (4th Cir. 2013).1
Plaintiff does not otherwise provide specific
objections to any portion of the Magistrate Judge’s R&R. Upon review, this Court does not find any
clear error in the remaining portions of the R&R not previously considered or discussed in this Order,
specifically the Magistrate Judge’s recommendation that pursuant to FED R. CIV . P. 41(b), Plaintiff’s
failure to comply with the Order filed October 6, 2016 informing the original Plaintiffs that they each
needed to proceed individually with different case numbers, should subject him to dismissal of his case.
The Court has thoroughly reviewed the entire record, including Plaintiff’s Complaint [ECF #1],
the Magistrate Judge’s Report and Recommendation [ECF #22], Plaintiff’s Objection to the Report and
Recommendation [ECF #30], and the applicable law. This Court has also considered Plaintiff’s Motion
for Recusal. [ECF #13]. For the reasons stated above, Plaintiff’s Motion for Recusal [ECF #13] is
DENIED. Further, for the reasons stated above and by the Magistrate Judge, the Court overrules
Plaintiff’s objections and adopts and incorporates the Report and Recommendation of the Magistrate
Judge. [ECF #22]. IT IS THEREFORE ORDERED that this case is DISMISSED. IT IS
FURTHER ORDERED that this action shall be DEEMED A STRIKE pursuant to 28 U.S.C.
§1915(g) for meeting the definition of a frivolous filing.
Plaintiff generally objects to the Magistrate Judge recommending a strike in this case and cites to what he claims are the
two requirements for issuing a strike: (1) if a defendant is immune from suit; and (2) where there is a claimed infringement
of a legal interest that clearly does not exist. [ECF #30, pp. 76-80]. This Court does not find this objection to be meritorious.
IT IS SO ORDERED.
Florence, South Carolina
June 30, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
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