Cleveland v. Harwell

Filing 18

ORDER: The Court overrules Plaintiff's objections and adopts and incorporates by reference the R & R [ECF No. 9 ] of the Magistrate Judge. Accordingly, the Court DISMISSES Plaintiff's complaint without prejudice and without issuance and service of process. The Court DENIES Plaintiff's motion to recuse [ECF No. 16 ]. Signed by the Honorable R Bryan Harwell on 08/24/2018. (lsut, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ANDERSON/GREENWOOD DIVISION
George Cleveland, III,

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Plaintiff,
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v.
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Robert Bryan Harwell, in his individual
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capacity as Federal Judge for the District )
of South Carolina,
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Defendant.
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____________________________________)

Civil Action No.: 8:18-cv-01593-RBH

ORDER

This matter is before the Court for consideration of Plaintiff’s objections to the Report and
Recommendation (“R & R”) of United States Magistrate Judge Thomas E. Rogers, III, who
recommends summarily dismissing Plaintiff’s pro se complaint without prejudice.1 See ECF Nos. 9 &
15. Plaintiff has also filed a motion to recuse the undersigned district judge. See ECF No. 16.
Discussion2
I.

R & R and Plaintiff’s Objections
Plaintiff, proceeding pro se, has filed a complaint seeking to sue the undersigned district judge

pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)
(establishing the validity of actions for damages when a federal officer acting under the color of federal

1

The Magistrate Judge issued the R & R in accordance with 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(e) (D.S.C.), and he reviewed Plaintiff’s complaint pursuant to the screening provisions of 28 U.S.C.
§§ 1915(e)(2) and 1915A. The Court is mindful of its duty to liberally construe the pleadings of pro se litigants. See
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). But see Beaudett v. City of Hampton, 775 F.2d 1274, 1278
(4th Cir. 1985) (“Principles requiring generous construction of pro se complaints are not, however, without limits.
Gordon directs district courts to construe pro se complaints liberally. It does not require those courts to conjure up
questions never squarely presented to them.”).
2

The R & R thoroughly summarizes the factual and procedural background of this case, as well as the
applicable legal standards.

authority allegedly violates a plaintiff’s constitutional rights). See ECF No. 1. The Magistrate Judge
recommends summarily dismissing Plaintiff’s complaint because the undersigned has absolute judicial
immunity for acts taken in relation to Plaintiff’s prior cases. See R & R at pp. 2–3. Plaintiff has filed
objections to the R & R. See ECF No. 15.
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The Court must engage in 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 [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). 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, 199–200 (4th Cir. 1983).
As the Magistrate Judge explains, the allegations in Plaintiff’s complaint indicate he is
displeased with the undersigned’s rulings in other cases.3 See generally ECF No. 1. Although Plaintiff

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Specifically, Plaintiff takes issue with the Court’s prior rulings in Cleveland v. Adger, No.
4:17-cv-02112-RBH (D.S.C.), and Cleveland v. Adger, No. 4:17-cv-03269-RBH (D.S.C.), both of which are on
appeal before the Fourth Circuit.

2

seeks to sue the undersigned pursuant to Bivens, “[j]udges possess absolute immunity for their judicial
acts and are subject to liability only in the ‘clear absence of all jurisdiction.’” Hamilton v. Murray, 648
F. App’x 344, 344–45 (4th Cir. 2016) (quoting Stump v. Sparkman, 435 U.S. 349, 356–57 (1978)).
“[T]he doctrine of absolute judicial immunity serves to protect federal judges from injunctive relief as
well as money damages.” Bolin v. Story, 225 F.3d 1234, 1240 (11th Cir. 2000) (collecting cases); see
also Stephens v. Herring, 827 F. Supp. 359, 362 (E.D. Va. 1993) (rejecting a Bivens action against a
federal judge and explaining “federal judges enjoy the same immunity from equitable remedies as they
do from damages”).
Having reviewed Plaintiff’s objections and conducted a de novo review of the record, the Court
agrees with the Magistrate Judge’s proposed findings and recommendations. The allegations in
Plaintiff’s complaint challenge judicial acts taken by the undersigned. The undersigned was acting
within his judicial capacity and “performing a function ‘normally performed by a judge,’” King v.
Myers, 973 F.2d 354, 358 (4th Cir. 1992) (quoting Stump, 435 U.S. at 362), when issuing the rulings
in the prior cases. Accordingly, Plaintiff’s complaint is subject to dismissal based on the doctrine of
absolute judicial immunity.4
II.

Plaintiff’s Motion to Recuse
Plaintiff has also filed a motion seeking to recuse the undersigned from hearing this case. See

ECF No. 16. However, “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); see also 28 U.S.C. § 455 (judicial

4

In his objections, Plaintiff also challenges the Magistrate Judge’s review of his complaint. See ECF No.
15 at pp. 1–2, 4. However, as noted above, such review is authorized by 28 U.S.C. § 636(b)(1) and Local Civil Rule
73.02(e) (D.S.C.), and the Court has conducted the requisite de novo review required by § 636(b)(1) and Fed. R. Civ.
P. 72(b).

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disqualification statute). “The nature of the judge’s bias must be personal and not judicial. A judge is
not disqualified because his familiarity with the facts of a case stem from his judicial conduct in
presiding over earlier proceedings.” In re Beard, 811 F.2d 818, 827 (4th Cir. 1987) (internal citation
omitted). Here, Plaintiff has not established extrajudicial bias warranting recusal. Instead, he seeks
recusal based on the undersigned’s decisions in other cases, which as noted above is not a valid basis
for disqualification. See, e.g., Prasad v. United States, 733 F. App’x 130, 131 (4th Cir. 2018)
(“Prasad’s claim of judicial bias, which is based solely on her disagreement with the district court’s
substantive rulings in this and Prasad’s other civil actions, gains no traction as this is not a sufficient
basis for such a claim.” (citing Liteky)). The Court will deny Plaintiff’s motion to recuse.
Conclusion
For the foregoing reasons, the Court overrules Plaintiff’s objections and adopts and incorporates
by reference the R & R [ECF No. 9] of the Magistrate Judge. Accordingly, the Court DISMISSES
Plaintiff’s complaint without prejudice and without issuance and service of process.5 The Court
DENIES Plaintiff’s motion to recuse [ECF No. 16].
IT IS SO ORDERED.

Florence, South Carolina
August 24, 2018

s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge

5

In the Court’s view, Plaintiff cannot cure the defects in his complaint by mere amendment. See Goode v.
Cent. Virginia Legal Aid Soc’y, Inc., 807 F.3d 619, 623 (4th Cir. 2015). The Court therefore declines to
automatically give Plaintiff leave to amend.

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