United States District Court, D. South Carolina, Anderson/Greenwood Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
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');">13]. Plaintiff has filed several
documents entitled, “Affidavit of Facts Giving Judicial
Notice”, as well. This matter is now before the Court
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
0:06-2459 (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.
November 14, 2016, Plaintiff filed a “Renewed”
Motion for Recusal. [ECF #13');">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');">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');">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');">13, p. 5');">p. 5]. Finally, Plaintiff requests a stay on two
cases until the conclusion of this case. [ECF #13');">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
Review of the Magistrate Judge's Report &
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, 199-200 (4th Cir. 1983).
Review of Pro Se Litigant's Filing
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, 113');">133 (10th Cir. 1999); Small
v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993).
Motion for Recusal
Magistrate Judge considered Plaintiff's
“Renewed” Motion for Recusal filed November 14,
2016 [ECF #13');">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 #27].
Review of ...