Bolin v. Story
| Decision Date | 06 September 2000 |
| Docket Number | No. 99-13880,99-13880 |
| Citation | 225 F.3d 1234 |
| Parties | (11th Cir. 2000) Larry BOLIN, Kenneth David Pealock, et al., Plaintiffs-Appellants, v. Richard W. STORY, et al., Defendants-Appellees. Non-Argument Calendar. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Northern District of Georgia.(No. 99-00024-CV-RLV-2), Robert L. Vining, Jr., Judge.
Before TJOFLAT, HULL and RONEY, Circuit Judges.
After being convicted of certain criminal offenses, plaintiffs brought this civil rights action seeking injunctive and declaratory relief against numerous judges and prosecutors, as well as an Internal Revenue Service ("IRS") agent. Plaintiffs appeal the district court's denial of plaintiffs' recusal motions and the Rule 12(b)(6) dismissal of their action based upon absolute immunity. Upon review, we affirm.
In 1995, Plaintiff Lloyd Thompson was convicted of a drug conspiracy in violation of 21 U.S.C. 846. Thompson's conviction and sentence were affirmed by this Court in an unpublished opinion on July 15, 1996. Thompson subsequently filed a motion to vacate his sentence pursuant to 28 U.S.C. 2255. See United States v. Thompson, Civil Action No. 1:97-cv-1815-WCO. Magistrate Judge John R. Strother issued a report and recommendation in which he recommended that the motion to vacate be denied. United States District Judge William C. O'Kelley adopted the report and recommendation and subsequently declined to issue a certificate of appealability. Thompson alleges that he appealed this ruling, but no ruling has been made by this Court.
In addition, Thompson asserts that "in the course of reviewing his paperwork, [he] found the following entry on his master docket sheet":
11/6/9772 ORDER by Mag Judge John R. Strother Jr. as to defendant Lloyd Barry Thompson directing clerk to shred sealed material. (yrm) [Entry date 11/20/97]
Finally, Thompson asserts that "[i]t was patently obvious from the ruling of defendant district judge William C. O'Kelly [sic] that he had not read any of plaintiff Lloyd Barry Thompson's 2255 petition" and that "predictably" his arguments will not be read by Article III judges in this Court either.
In 1997, plaintiffs Kenneth Pealock and Larry Bolin, among others, were indicted for conspiracy to defraud the United States. See United States v. Pealock, 2:97- cr-29-RWS. Pealock and Bolin were tried before United States District Judge Richard W. Story, and found guilty on March 15, 1999. Pealock was sentenced to a term of imprisonment, and Bolin had yet to be sentenced as of the time of the district court's ruling in this case.1 Defendant Assistant United States Attorney David M. Leta handled the case for the government.
Pealock and Bolin allege that the only reason charges were brought against Pealock was so that Leta could "score 'career points' by obtaining a $3,000,000.00 forfeiture of plaintiff Kenneth Pealock's property." Further, Pealock and Bolin allege that "either defendant district judge Richard W. Story is being completely dishonest in his rulings or someone else (i.e., the prosecutor) is writing his opinions for him."2
Plaintiffs brought this action for declaratory and injunctive relief against Judges O'Kelley and Story, Magistrate Judge Strother, most of the active and senior judges of this Court,3 Assistant United States Attorney Leta, the United States Attorney for the Northern District of Georgia, Richard Deane, Ted Robertson, an IRS agent who was allegedly involved in Pealock and Bolin's federal criminal trial, and unnamed law clerks and staff attorneys for this Court. Plaintiffs state that "[t]he gravamen of plaintiffs' Complaint is that the defendant federal judges do not READ anything submitted by pro se litigants, thereby defrauding them of the judgments that are rightfully theirs." In addition, "[t]his case also addresses perjury by a government witness before a grand jury, capricious prosecution, denial of the right to have a disinterested prosecutor, withholding of Brady material, and judicial dishonesty."
The complaint asserts that both this Court and the "Northern District of Georgia" treat pro se litigants differently than licensed attorneys in that magistrate judges in the district court make reports and recommendations which are then adopted by district judges who have not read the pro se pleadings. Further, the complaint alleges that "[i]t has been clearly established that appellate court judges in the Eleventh Circuit routinely do not read pro se briefs, but allow staff attorneys to make 'summaries' for them instead." The plaintiffs base this assertion on the testimony of both former Chief Judges Joseph Hatchett and Gerald Tjoflat at a March 28, 1998 public hearing of the Commission on Structural Alternatives for the Federal Courts of Appeals in Atlanta, Georgia.
Plaintiffs' complaint appears to allege that the failure of the defendant judges to read pro se pleadings violates their right to equal protection, denies them access to the courts, and amounts to obstruction of justice. In addition, the complaint appears to allege that this practice constitutes a fraud on the court and permitted Leta to present false testimony in the prosecution of Pealock and Bolin, thus perpetuating the fraud on the court. Finally, the complaint alleges that the defendant judges, court personnel, and U.S. Attorneys comprise an enterprise which persists in a pattern of racketeering activity to obstruct justice.
Plaintiffs' complaint seeks declarations that (1) pro se litigants "are entitled to the same consideration in adjudication of their actions as any lawyer from any 'blue chip' law firm," (2) "the practice of allowing staff attorneys to make presentations to appellate panels too involved in other things" is unconstitutional, (3) "the practice of issuing an Opinion without first reading the pleadings of a pro se litigant" is unconstitutional, and (4) Defendant Judges Story and Strother are "mentally incompetent by reason of bias." Plaintiffs also seek to enjoin defendants to provide (1) a report by this Court to Congress, (2) "extensive discovery ... in order to uncover and document the fraud in the judgments rendered against them and the pathological bias of defendant federal district court judge Richard W. Story, defendant senior district court judge William C. O'Kelly [sic], and federal magistrate judge John R. Strother, Jr.," and (3) an investigation by a grand jury into the "criminal depredations of the defendants." Further, plaintiff Thompson seeks to void the judgment in Thompson v. United States, Case No. 1:97-cv-1814-WCO.
This action was before the Honorable Robert L. Vining, Jr., United States District Judge for the Northern District of Georgia. The defendant Judges and U.S. Attorneys filed a motion to dismiss plaintiffs' action on the basis of sovereign immunity on April 22, 1999. An additional motion to dismiss was filed by Defendant Ted Robertson on August 31, 1999. Prior to the district court's ruling on these motions, plaintiffs filed a motion for the recusal of Judge Vining on March 25, 1999. The district court denied that recusal motion on May 3, 1999. The plaintiffs filed another motion to recuse on June 17, 1999.
In an order dated September 27, 1999, the district court denied plaintiffs' second motion for recusal and granted defendants' motions to dismiss plaintiffs' complaint. Specifically, the district court dismissed plaintiffs' claims against the defendant Judges and U.S. Attorneys on the basis of absolute immunity and the claims against I.R.S. agent Robertson for failure to state a claim.4 Plaintiffs appeal the district court's orders denying recusal and dismissing this action.
Plaintiffs raise several issues on appeal. Because plaintiffs have named most of the active and senior judges of this Court as defendants, however, we must first address our ability to decide this appeal before reaching the merits of these issues.
In ordinary circumstances, each of us would be disqualified from hearing this appeal by virtue of being named as defendants. See 28 U.S.C. 455(b)(5)(i) (providing that a federal judge "shall ... disqualify himself [when] [h]e ... is a party to the proceeding"). There is an exception to this rule, however, in cases where "the case cannot be heard otherwise." United States v. Will, 449 U.S. 200, 213, 101 S.Ct. 471, 66 L.Ed.2d 392 (1980). Under this "rule of necessity," a judge is not disqualified due to a personal interest if there is no other judge available to hear the case. See id.; Atkins v. United States, 214 Ct.Cl. 186, 556 F.2d 1028, 1036 (Ct.Cl.1977).
The rule of necessity is generally invoked in cases in which no judge in the country is capable of hearing the case. See In re Petition to Inspect and Copy Grand Jury Materials, 735 F.2d 1261, 1266-67 (11th Cir.1984). At least two courts have found, however, that where a plaintiff indiscriminately sues all of the judges in a circuit, the fact that it is possible to convene a panel of disinterested judges outside the circuit does not require transfer of the case or preclude the application of the rule of necessity. See Switzer v. Berry, 198 F.3d 1255 (10th Cir.2000); Tapia-Ortiz v. Winter et al., 185 F.3d 8 (2d Cir.1999). Specifically, in Tapia-Ortiz, a pro se prisoner brought a RICO action against the judges of the Second Circuit Court of Appeals and its staff attorneys claiming that they had failed, and would fail, to address properly the issues raised in cases on appeal. The Second Circuit found that the fact that "it is possible to convene a disinterested panel in another circuit does not require transfer here, where appellant has indiscriminately named all then-current Second...
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