Baccus v. Byars et al

Filing 41

ORDER finding as moot 34 Motion; finding as moot 35 Motion; finding as moot 36 Motion to Amend/Correct; adopting 37 Report and Recommendation and dismissing the case without prejudice. Signed by Honorable David C. Norton on 04-30-2014. (gcle, 4/30/14)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
JOHN R. BACCUS, a/k/a JOHN
ROOSEVELT BACCUS, No. 187393
Plaintiff,
vs.
WILLIAM R. BYARS, et. al.,
Defendants.

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No. 9:13-cv-02309-DCN

ORDER

This matter is before the court on United States Magistrate Bristow Marchant’s
report and recommendation (“R&R”) that the court dismiss plaintiff’s case without
prejudice. For the reasons set forth below, the court adopts the R&R and dismisses the
case without prejudice.
I. BACKGROUND
Plaintiff John R. Baccus (“Baccus”) is a South Carolina state prisoner who is
housed at the Perry Correctional Institution (“PCI”) in Pelzer, South Carolina.
Defendants are twenty-one PCI officials and staff members against whom Baccus has
asserted claims pursuant to 42 U.S.C. § 1983.
Baccus, appearing pro se, filed his complaint on August 26, 2013. He amended
his complaint just two days later. On September 30, 2013, the magistrate judge ordered
Baccus to bring his complaint into proper form by October 24, 2013. Specifically, the
magistrate judge directed Baccus to complete a single summons form listing every named
defendant and to complete, sign, and return Form USM-285 for all of the named
defendants.

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On November 13, 2013, the magistrate judge granted Baccus an extension of time
to comply with the proper form order. On November 20, 2013, the magistrate judge
further extended Baccus’s proper form deadline until December 9, 2013. The magistrate
judge’s November 20, 2013 order warned Baccus that his case could be dismissed if he
failed to bring his case into proper form. Despite the magistrate judge’s warnings,
Baccus has, to date, failed to bring his case into proper form. Instead, he has filed an
assortment of unrelated procedural and substantive motions, including two motions
captioned as motions for adversary and due process conformity hearings, a motion to
compel, a motion requesting a three-judge panel, and a motion to amend the complaint.
On March 28, 2014, the magistrate judge issued the pending R&R, which
recommended that the case be dismissed without prejudice due to Baccus’s failure to
prosecute his claims. On April 18, 2014, Baccus filed objections to the R&R. The matter
is now ripe for the court’s review.
II. STANDARDS OF REVIEW
This court is charged with conducting a de novo review of any portion of the
magistrate judge’s report to which specific, written objections are made, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28
U.S.C. § 636(b)(1). The magistrate judge’s recommendation does not carry presumptive
weight, and it is the responsibility of this court to make a final determination. Mathews
v. Weber, 423 U.S. 261, 270-71 (1976). A party’s failure to object may be treated as
agreement with the conclusions of the magistrate judge. See Thomas v. Arn, 474 U.S.
140, 150 (1985).

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Baccus appears pro se in this case. Federal district courts are charged with
liberally construing complaints filed by pro se litigants to allow the development of a
potentially meritorious case. See Haines v. Kerner, 404 U.S. 519, 521 (1972). The
requirement of liberal construction does not mean that the court can ignore a clear failure
in the pleadings to allege facts that set forth a cognizable claim, nor does it mean the
court can assume the existence of a genuine issue of material fact where none exists.
Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III. DISCUSSION
The R&R recommends that the court dismiss Baccus’s case for failure to
prosecute. While Baccus’s objections are difficult to parse, it appears that he objects only
that the magistrate judge, the undersigned, and United States District Judge Joseph F.
Anderson, Jr.1 have improperly “prejudged” his “applications.” Pl.’s Objections 1, 2,
ECF No. 40.
Rule 41(b) of the Federal Rules of Civil Procedure authorizes a court to dismiss
an action due to the plaintiff’s failure to prosecute or to comply with the Federal Rules.
Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 (1962) (finding
that a court may, sua sponte, dismiss a case pursuant to Rule 41(b)), reh’g denied, 371
U.S. 873 (1962). In determining whether a case should be dismissed pursuant to Rule
41(b), a court must “ascertain (1) the degree of personal responsibility of the plaintiff, (2)
the amount of prejudice caused the defendant, (3) the existence of a drawn out history of
deliberately proceeding in a dilatory fashion, and (4) the existence of a sanction less

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Judge Anderson has no involvement in this case. In 2007, he presided over one of the many
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drastic than dismissal.” Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir.
1982) (internal quotations omitted).
In this case, three of the four factors weigh heavily in favor of dismissal. First,
Baccus is entirely responsible for the months of delay that have occurred. Second,
defendants have undoubtedly been prejudiced by Baccus’s delay. Though this case is
more than eight months old, none of the defendants has been served. As a result, they
have not had the opportunity to investigate the allegations made against them. Third,
Baccus has a long history of proceeding in a dilatory fashion. He has filed no fewer than
eighteen prisoner rights cases in this court, many of which have been dismissed for
failure to bring the complaint into proper form. In the instant case, Baccus has failed to
follow the magistrate judge’s orders and has instead filed a variety of unrelated motions.
The fourth factor, whether there is an available sanction less severe than dismissal, does
not weigh particularly heavily in this case because the court chooses to dismiss Baccus’s
case without prejudice. Such a dismissal preserves Baccus’s right to seek relief regarding
the allegations he raised in his complaint.
Because the court agrees with the recommendations included in the R&R, it must
next consider Baccus’s objections thereto. Baccus objects that judges in this district have
improperly “prejudged” the matters before them in a manner that “made it impossible for
Plaintiff to secure fair consideration of his cases.” Pl.’s Objections 2-3. The court
construes this objection as an argument that the three judges mentioned should be recused
from this – and other – of Baccus’s cases.
Title 28 U.S.C. § 455 governs disqualification of federal judges. In pertinent part,
the statute provides that “[a]ny justice, judge, or magistrate judge of the United States

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shall disqualify himself in any proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). The standard articulated in § 455(a) 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). Under § 455(b)(1), a judge should also
disqualify himself “[w]here he has a personal bias or prejudice concerning a party . . . .”
Bias or prejudice must be proven by compelling evidence. Brokaw v. Mercer Cnty., 235
F.3d 1000, 1025 (7th Cir. 2000).
In support of his recusal argument, Baccus points to the magistrate judge’s
previous rulings and recommendations in this case. These rulings do not, as Baccus
suggests, indicate that the magistrate judge or any other judge in this district has
improperly “prejudged” Baccus’s claims. See Liteky v. United States, 510 U.S. 540, 555
(1994) (“Judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.”); Belue v. Leventhal, 640 F.3d 567, 574 (4th Cir. 2011) (“[W]hile recusal
motions serve as an important safeguard against truly egregious conduct, they cannot
become a form of brushback pitch for litigants to hurl at judges who do not rule in their
favor.”). Baccus has not set forth – and the court cannot divine – any evidence that
indicates that any of the judges assigned to this case are biased, prejudiced against
Baccus, or otherwise should recuse themselves. An adverse ruling by the magistrate
judge is simply not enough to demonstrate that recusal is appropriate.
Moreover, it appears that Baccus would similarly argue for the recusal of any
judge in this district who might rule against him. As a result, the Rule of Necessity2 also
The Rule of Necessity is “[t]he concept of the absolute duty of judges to hear and decide cases
within their jurisdiction.” United States v. Will, 449 U.S. 200, 215 (1980). Under this common
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likely compels the overruling of Baccus’s objections. In short, Baccus’s objections are
without merit.
IV. CONCLUSION
For the reasons set forth above, the court ADOPTS the magistrate judge’s R&R,
ECF No. 37, and DISMISSES this case WITHOUT PREJUDICE. Because this case is
dismissed, the court also FINDS AS MOOT Baccus’s three other pending motions, ECF
Nos. 34, 35, and 36.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
April 30, 2014
Charleston, South Carolina

law rule, a judge should not refuse to hear a case “‘if failure to do so would result in a denial of a
litigant’s constitutional right to have a question, properly presented to such court, adjudicated.’”
Id. at 214 (quoting State ex rel. Mitchell v. Sage Stores Co., 143 P.2d 652, 656 (Kan. 1943)).
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