United States District Court, D. South Carolina, Charleston Division
ORDER AND OPINION
Richard Mark Gergel, United States District Court Judge
matter is before the Court on the Report and Recommendation
("R. & R.") of the Magistrate Judge (Dkt. No.
30) recommending that Plaintiffs Complaint (Dkt. No. 1) be
summarily dismissed with prejudice and without issuance of
service of process. For the reasons set forth below, this
Court adopts the R. & R. as the order of the Court.
Background and Relevant Facts
filed this civil action pursuant to 42 U.S.C. § 1983.
Plaintiff is proceeding pro se and in forma
pauperis. As detailed by the Magistrate Judge in the R.
& R., Plaintiff is one of a group of inmates who has
repeatedly filed the same or similar complaints in this
district, purporting to sue several judges for
"conspiracy" and "fraud" due to their
adverse rulings on the inmates' habeas petitions. The
Complaint also contains a diatribe against same-sex marriage
and seeks to "remove" this case (and others) to
"the State of New Jersey."
Legal Standards a. Pro Se
Court liberally construes complaints filed by pro se
litigants to allow the development of a potentially
meritorious case. See Cruz v. Beto, 405 U.S. 319
(1972); Haines v. Kerner, 404 U.S. 519 (1972). The
requirement of liberal construction does not mean that the
Court can ignore a clear failure in the pleadings to allege
facts which set forth a viable federal claim, nor can the
Court assume the existence of a genuine issue of material
fact where none exists. See Weller v. Dep 7 of
Social Services, 901 F.2d 387 (4th Cir. 1990).
Magistrate's Report and Recommendation
Magistrate Judge makes only a recommendation to this Court.
The recommendation has no presumptive weight, and the
responsibility for making a final determination remains with
this Court. See Mathews v. Weber, 423 U.S. 261,
270-71 (1976). This Court is charged with making a de
novo determination of those portions of the Report and
Recommendation to which specific objection is made.
Additionally, the Court may "accept, reject, or modify,
in whole or in part, the findings or recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1).
purports to sue several named defendants, including the
undersigned, as well as "all other judges of the S.C.
U.S. District Court in its entirety." (Dkt. No. 1 at 6.)
Pursuant to Title 28, United States Code, Section 455(b)(i),
a district judge shall disqualify himself in any proceeding
if he is a party to the proceeding. However, when a litigant
sues all of the judges in a district, the rule of necessity
allows a district judge to hear the case. See Click v.
Edwards, 803 F.3d 505, 509-10 (9th Cir. 2015) ("We
therefore hold that the rule of necessity applies where every
judge of a tribunal would otherwise be disqualified. More
pithily stated: "where all are disqualified, none are
disqualified." Ignacio, 453 F.3d at 1165
(internal quotation marks omitted) (quoting Pilla v. Am.
Bar Ass'n, 542 F.2d 56, 59 (8th Cir.1976)). The rule
of necessity thus permits a district judge to hear a case in
which he is named as a defendant where a litigant sues all
the judges of the district.").
rule of necessity is particularly appropriate in cases like
this one where the entire Complaint is frivolous, because no
reasonable outside observer would question the district
judge's impartiality in ruling on the matter. See
United States v. Wiggins, No. CRIM. WDQ-09-0287, 2011 WL
806383, at *7 (D. Md. Mar. 1, 2011) (quoting United
States v. DeTemple, 162 F.3d 279, 286-87 (4th Cir.1998))
("A federal judge must disqualify himself when 'his
impartiality might reasonably be questioned.' 28 U.S.C.
§ 455(a). This objective standard asks whether a
'reasonable, well-informed observer who assesses all the
facts and circumstances' would question a judge's
impartiality.'"). Plaintiff has named all the judges
in this district as defendants because he takes issue with
their prior rulings, and the Fourth Circuit has ruled that
"[J]udicial rulings and 'opinions formed by the
judge on the basis of facts introduced or events occurring in
the course of the current proceedings, or of prior
proceedings' almost 'never constitute a valid basis
for a bias or partiality motion, '" United
States v. Brown, 636 Fed.Appx. 157, 160 (4th Cir. 2016)
(internal citations omitted). "[R]ecusal decisions
reflect not only the need to secure public confidence through
proceedings that appear impartial, but also the need to
prevent parties from too easily obtaining the
disqualification of a judge, thereby potentially manipulating
the system for strategic reasons." United States v.
Mack, 455 Fed.Appx. 323, 325 (4th Cir. 2011) (quoting
Belue v. Leventhal, 640 F.3d 567, 574 (4th Cir.
2011)). Plaintiff undoubtedly seeks to manipulate the system
for strategic reasons, as he seeks to remove this case (and
other, related cases) to the State of New Jersey. For these
reasons, the undersigned finds that it is not appropriate to
recuse himself from the matter and has considered the
Magistrate Judge's Report and Recommendation.
Magistrate Judge explained in the R. & R. that this
matter should be summarily dismissed for several reasons,
including absolute judicial and quasi-judicial immunity (Dkt.
No. 30 at 8), sovereign immunity (Id. at 9), failure
to state a claim (Id. at 10), the bar on collateral
attacks to convictions set forth in Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994) (Id. at
12), and general frivolity (Id. at 13). This Court
agrees with the Magistrate Judge that the Complaint is
frivolous and fails to state a plausible claim for relief and
that, as the Complaint is entirely subject to summary
dismissal on each of the enumerated grounds under 28 U.S.C.
§1915(e)(2)(B), this dismissal should count as a strike.
has filed Objections to the R. & R (Dkt. No. 35.)
However, those Objections appear to be only a notice of
appeal to the Fourth Circuit. In the absence of any specific
or coherent objections, "a district court need not
conduct a de novo review, but instead must only
satisfy itself that there is no clear error on the face of
the record in order to accept the recommendation."
See Diamond v. Colonial Life & Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005) (internal
quotation omitted). This Court finds that the Magistrate
Judge has correctly applied the controlling law to the facts
of this case.