Elliott v. Golston et al

Filing 152

ORDER denying 149 Motion for Recusal. Signed by Chief Magistrate Judge Tu M. Pham on January 18, 2023. (cmp)

Case 2:19-cv-02767-TLP-tmp Document 152 Filed 01/18/23 Page 1 of 10

PageID 566

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
________________________________________________________________
T.C. TYRA ELLIOTT,

)
)
Plaintiff,
)
)
v.
)
No. 19-2767-TLP-tmp
)
L. GOLSTON, et al.,
)
)
Defendants.
)
________________________________________________________________
ORDER DENYING MOTION TO RECUSE
________________________________________________________________
Before the court is plaintiff T.C. Tyra Elliott’s postjudgment Motion for Recusal. (ECF No. 149.) For the below reasons,
the motion is DENIED.
I. BACKGROUND
On November 8, 2019, plaintiff T.C. Tyra Elliott filed a pro
se

complaint

Sheriff’s

asserting

Office

§

(“SCSO”)

1983

claims

Deputy

Leon

against
Golston,

Shelby

County

Jr.,

Deputy

Deddrick Moore, and Sergeant Chad Cunningham.1 On May 20, 2020, as
the court began transitioning to remote proceedings due to the

1Elliott’s

complaint also originally named Magistrate James
Franklin as a defendant. (ECF No. 1.) Magistrate Franklin
subsequently moved to dismiss the claims against him under Rule
12(b)(6). (ECF No. 9.) The court granted Magistrate Franklin’s
motion and dismissed him from the lawsuit. (ECF Nos. 30 & 33.)

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COVID-19 pandemic, the undersigned held a telephonic scheduling
conference

during

which

Elliott

repeatedly

acted

“unruly,

disruptive, and disobedient.” (ECF No. 59 at PageID 184.) Towards
the end of the call, Elliott informed the court that he was
recording the conference, and the undersigned informed him that
recording

a

Instead

of

ceasing

the

judicial
complying

proceeding
with

recording,

the

Elliott

violates

federal

undersigned’s
insisted

law.

(Id.)

instruction

and

recording

the

that

proceeding did not violate the law. (Id.) Due to Elliot’s continued
disruptive conduct, the undersigned ended the conference call.
On

July

30,

2020,

Elliot

filed

a

motion

to

amend

and

supplement his pro se complaint. (ECF No. 79.) As part of this
motion, Elliot sought to add the undersigned as a defendant “for
violation of my federal Right to record my telephonic Scheduling
conference hearing.” (Id. at PageID 242.) The undersigned denied
the

motion

to

file

an

amended

complaint,

including

the

undersigned’s addition as a defendant.2 (ECF No. 104 at PageID
370.) In so ruling, the undersigned stated the following:
Elliott asserts that the undersigned violated his
“federal right to record [the] telephonic scheduling
conference.” (ECF No. 79, at 3.) No such right exists.
In fact, the unauthorized recording of federal court
2In

this motion, Elliot also requested to retract certain
allegations from his original complaint and to replace those
allegations with new ones. (ECF No. 104 at PageID 372.) The motion
was granted as to that request. (Id.)
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proceedings is unlawful. The recording of federal court
proceedings is governed by the Judicial Conference of
the United States and by Local Rule. The Judicial
Conference has a longstanding policy that recording
federal court proceedings is prohibited absent prior
judicial authorization. See JCUS Proceedings, Sept.
1996, at 54. Likewise, the Local Rules prohibit “the
recording of transmission of Court proceedings.” See LR
83.2. This includes “proceedings before a Magistrate
Judge, whether or not Court is actually in session.” Id.
It is also worth noting that there is no First Amendment
right to record court proceedings. See McKay v.
Federspiel, 2014 U.S. Dist. LEXIS 49417, at *16 (E.D.
Mich. April 10, 2014) (citing Estes v. Texas, 381 U.S.
532, 539 (1965); Chandler v. Florida, 449 U.S. 560, 569
(1981))
Moreover, the undersigned is not a state actor subject
to suit under § 1983, and federal judges have absolute
immunity from liability to civil suit. Stump v.
Sparkman, 435 U.S. 349, 355-56 (1978); Pierson v. Ray,
386 U.S. 547 554 (1967); Barnes v. Winchell, 105 F.3d
1111, 1115 (6th Cir. 1997). Judicial immunity is
overcome if: (1) the conduct alleged is performed at a
time when the judicial officer is not acting as a judge;
or (2) the conduct alleged, although judicial in nature,
is taken in complete absence of all subject-matter
jurisdiction of the court over which he or she presides.
Barnes, 105 F.3d at 1116. Neither exception applies in
this case. See Stine v. Lappin, No. 08-cv-00164, 2009
U.S. Dist. LEXIS 14604, 2009 WL 507786, at *1 (D. Colo.
Feb. 25, 2009) (denying motion to amend complaint to add
as defendant magistrate judge assigned to case because
amendment would be futile; proposed amendment was based
on facts arising while case was pending, not on the
factual allegations underlying the complaint); Dimitric
v. Tex. Workforce Comm'n, No. G-07-247, 2009 U.S. Dist.
LEXIS 20191, 2009 WL 674391, at *4 (S.D. Tex. Mar. 13,
2009) (denying plaintiff's motion to add district judge
and magistrate judge assigned to case as defendants
based on allegations that judges conspired with other
defendants, as judges would be entitled to judicial
immunity thus making the amendment futile). Accordingly,
Elliott fails to state a claim against the undersigned,
and amendment would also be futile in this regard.
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(Id. at PageID 370-72.)
On May 11, 2021, defendants each filed motions for summary
judgment. (ECF Nos. 112, 113, 114.) On May 24, 2021, the court
entered an order granting Elliott leave to file video recordings
that he had obtained from the defendants during discovery and which
he claimed showed his physical altercations with the defendants at
issue in this case. (ECF No. 137 at PageID 497-98.) In response to
that order, on June 1, 2021, Elliott filed five CDs labeled “V1”
through “V5,” each containing several video files, along with a
document styled “Demonstrative Exhibits in Response to Defendants
Summary Judgment,” in which he attempted to provide his own
commentary regarding the events depicted in the video recordings.
(Id. at PageID 498.) On June 16, 2021, defendants filed a motion
to strike portions of the notice of filing as exceeding the scope
of the court’s order authorizing Elliott to file video recordings.
(Id.) Elliott filed a response on June 28, 2021, urging the court
not

to

strike

his

notice

of

filing.

(Id.)

Since

the

video

recordings were produced by the defendants during discovery and in
light of Elliot’s status as a pro se litigant, the undersigned
gave Elliott the benefit of the doubt and considered the video
recordings contained on the CDs. (Id. at PageID 499.)
After

reviewing

the

briefings
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and

all

of

the

evidence,

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including Elliot’s video footage, the undersigned entered a Report
and Recommendation on February 17, 2022, recommending that all
three motions for summary judgment be granted. (ECF No. 137.) On
March 22, 2022, the presiding district judge adopted the Report
and Recommendation and granted defendants’ motions for summary
judgment. (ECF No. 145.) Judgment was entered on March 24, 2022.
(ECF No. 146.) On April 11, 2022, Elliot filed a Notice of Appeal
of the judgment to the Sixth Circuit Court of Appeals. (ECF No.
148.) That appeal remains pending.
Afterwards, on April 13, 2022, Elliot filed the present
motion.3

(ECF

No.

149.)

Elliott

appears

to

argue

that

the

undersigned should recuse himself for three reasons. First, Elliot
argues

that

the

undersigned

should

have

recused

when

Elliot

attempted to name the undersigned in his amended complaint. (Id.
at PageID 559-60.) Second, Elliot claims that the undersigned
violated Federal Rule of Evidence 605 because the undersigned, in
ruling on various motions filed by Elliot during this litigation,
has provided “witness” testimony. (Id.) Third, Elliot contends
that the undersigned violated Elliot’s First Amendment rights by

3Elliott

has previously made assertions of bias by the court and
has unsuccessfully sought the undersigned’s recusal on several
occasions. (ECF Nos. 35, 43, 47, 51, 53, 54, 56, 58, 60, 61, 63,
64 & 66.) The presiding district judge affirmed the undersigned’s
denial of Elliott’s motion for recusal and later denied Elliot’s
motion for reconsideration. (ECF Nos. 62, 78.)
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preventing him from recording his scheduling conference. (Id. at
PageID 560.)
II.

ANALYSIS

Judges are presumed impartial, and the moving party carries
the burden of demonstrating that recusal or disqualification is
warranted. Burley v. Gagacki, 834 F.3d 606, 616 (6th Cir. 2016)
(citing Consol. Rail Corp. v. Yashinsky, 170 F.3d 591, 597 (6th
Cir. 1999)). “Under 28 U.S.C. § 455(a), a judge ‘shall disqualify
himself

in

any

proceeding

in

which

his

impartiality

might

reasonably be questioned.’” Melchor v. United States, No. 16-1160,
2016 WL 9447162, at *2 (6th Cir. Sept. 23, 2016) (quoting 28 U.S.C.
§ 455(a)).

“[R]ecusal is

required

if

a

reasonable,

objective

person, knowing all of the circumstances, would have questioned
the judge's impartiality.” Id. (internal quotations and citations
omitted).

“The

judge

need

not recuse himself

based

on

the

subjective view of a party, no matter how strongly that view is
held.”

Id.

(internal

quotations,

citations,

and

alterations

omitted). “[J]udicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky v. United
States,

510

U.S.

540,

555

(1994).

“[O]nly

in

the

rarest

circumstances” can rulings “evidence the degree of favoritism or
antagonism

required”

to

justify

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recusal.

Id.

Similarly,

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“[j]udicial remarks” accompanying a ruling “ordinarily do not
support a bias or partiality challenge.” Id.
Additionally,
personal
knowledge

bias
of

proceeding.” 28

or

a

judge must

prejudice

disputed
U.S.C.

also recuse “where

concerning

evidentiary
§

455(b).

28

a

party,

or

he has

a

personal

facts

concerning

U.S.C.

§

the

455(b)(5)(iv)

specifically requires that a judge recuse if he or she is “likely
to be a material witness in the proceeding.” See also Code of
Conduct for United States Judges, Canon 3(C)(1)(d)(iv).
A.

The Naming of the Undersigned in Elliot’s Amended Complaint
Elliot argues that the undersigned should have recused when

Elliot attempted to add the undersigned as a defendant in his
amended complaint. (ECF No. 149 at PageID 560.) Although a judge
is generally required to disqualify him or herself when he or she
is “a party to the proceeding,” 28 U.S.C. § 455(b)(5)(i), courts
have held that, “[i]n order to guard against ‘judge shopping,’”
this rule is inapplicable where there is “no legitimate basis for
suing the judge.” Tamburro v. City of East Providence, 981 F.2d
1245

(table),

1992

WL

380010,

at

*1

(1st

Cir.

1992)

(quoting Andersen v. Roszkowski, 681 F. Supp. 1284, 1289 (N.D.
Ill. 1988), aff'd 894 F.2d 1338 (7th Cir. 1990)); see also Rodman
v. Misner, 852 F.2d 569 (table), 1988 WL 76545, at *1 (6th Cir.
1988) (“The rule is that a judge is not disqualified from hearing
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a case merely because a litigant sues or threatens to sue him or
her.”) (citing United States v. Grismore, 564 F.2d 929, 933 (10th
Cir. 1977)); United States v Berry, No. 15-20743, 2018 WL 10418594,
at *1 (E.D. Mich. Feb. 23, 2018) (“In pursuing legal action against
the undersigned after the instigation of this case, the defendant
has attempted to manufacture a basis for recusal. The Court finds
that the defendant's motion . . . has not raised issues that would
warrant recusal for bias, prejudice, or financial interest, and
the

Court's

impartiality

cannot

reasonably

be

questioned.”);

DiMartino v. Pulice, No. 3:16-CV-0378, 2017 WL 958391, at *2 (D.
Conn. Mar. 10, 2017) (“The statute governing recusal . . . appears
to mandate recusal . . . when a judge is a party to . . . a
proceeding[.] However, it is clear that a judge is not disqualified
. . . merely because a litigant sues or threatens to sue him.”).
These principles apply when a litigant names the judge in an
amended complaint, perhaps in an effort to obtain the judge's
disqualification. 32 Am. Jur. 2d Fed. Courts § 92 (“A judge who is
named in an amended complaint is not required to disqualify him or
herself

unless

there

is

a

legitimate

basis

for

suing

the

judge.”); see also Sullivan v. Conway, 157 F.3d 1092, 1096 (7th
Cir. 1998) (“[I]t is improper for a lawyer or litigant . . .
to create the ground on which he seeks the recusal of the judge
assigned to the case. That is arrant judge-shopping.”)
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As stated in the order denying the motion to amend the
complaint, there was no legitimate basis for Elliot’s claims
against the undersigned. Therefore, Elliot’s attempt to add the
undersigned as a defendant did not require recusal.
B.

The Allegation that the Undersigned Acted as a Witness
Elliot argues that the undersigned “gave several testimonies

on record during the administrative process and that violates Rule
605. He should recuse himself immediately for acting as a witness
and giving statements about my actions indeed makes him a witness
and he will be called upon.” (ECF No. 149 at PageID 559.) Further,
Elliot states, “[w]hen [the undersigned] stated he watched the
video and gave his testimony of what he describe happened he
violated rule 605.” (Id. at PageID 560.) Elliot seemingly contends
that in viewing the video footage that the court allowed Elliot to
file in response to defendants’ motions for summary judgment, the
undersigned became a witness who must recuse from the case.
Federal Rule of Evidence 605 states, “the presiding judge may
not

testify

as

a

witness

at

the

trial.”

Further,

28

U.S.C.

§ 455(b)(5)(iv) requires that a judge recuse if they are “likely
to be a material witness in the proceeding.” The undersigned has
not provided any testimony in Elliot’s case; therefore, Rule 605
has not been violated. Nor is the undersigned likely to be called
as a material witness. The undersigned has no personal knowledge
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of the facts of this case but has merely ruled on motions and made
findings of fact based on the evidence presented. Therefore,
recusal under 28 U.S.C. § 455(b)(5)(iv) is not warranted.
C.

The Alleged Violation of Elliot’s Right to Record Conference
Elliot also claims that his First Amendment rights were

violated

when

he

was

not

allowed

to

record

the

telephonic

scheduling conference. (ECF No. 149 at PageID 560.) This issue was
previously brought before the presiding district judge in Elliot’s
“Motion

Under

[Federal

Rule

of

Civil

Procedure

54(b)]

Order

[Affirming] Motion to Recuse” (ECF No. 63.) The district judge
denied the motion because the Local Rules prohibit the “recording
or transmission of Court proceedings.” (ECF No. 78 at PageID 238.)
Additionally, there is no First Amendment right to record court
proceedings. See McKay, 2014 U.S. Dist. LEXIS 49417, at *16 (citing
Estes, 381 U.S. at 539; Chandler, 449 U.S. at 569).
III. CONCLUSION
For the reasons above, Elliot’s Motion for Recusal is DENIED.
IT IS SO ORDERED.
s/ Tu M. Pham
TU M. PHAM
Chief United States Magistrate Judge
January 18, 2022
Date

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