Ndoromo v. Barr

• Decision Date: 31 August 2020
• Docket Number: Civil Action No. 19-3781 (CKK)
• Citation: 486 F.Supp.3d 388
• Parties: Akube Wuromoni NDOROMO, Plaintiff v. William BARR, et al., Defendants
• Court: U.S. District Court — District of Columbia

486 F.Supp.3d 388

Akube Wuromoni NDOROMO, Plaintiff

v.William BARR, et al., Defendants

Civil Action No. 19-3781 (CKK)

United States District Court, District of Columbia.

Filed August 31, 2020

Akube Wuromoni Ndoromo, Washington, DC, pro se.

Diana Viggiano Valdivia, Scott Leeson Sroka, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant William P. Barr.

Diana Viggiano Valdivia, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant Timothy J. Shea.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, United States District Judge

Pro se Plaintiff Akube Ndoromo brings this lawsuit against Defendants William Barr and Timothy Shea requesting "restitution of his funds, and damages" totaling $1,048,357,812.17. Compl., ECF No. 1-1. Pro se Plaintiff's Complaint is challenging to follow; but, as the Court reads the Complaint in conjunction with other filings, Plaintiff appears to state three claims for relief. First, Plaintiff alleges that his assets, including bank accounts, businesses, and other properties, were wrongfully forfeited. Second, Plaintiff contends that Defendants violated the False Claims Act. Third, Plaintiff argues that Defendants violated 12 USC § 1817 by wrongfully taking his property and funds. Defendants have moved for the dismissal of all of Plaintiff's claims. And, Plaintiff has moved for the recusal of the undersigned Judge. Upon consideration of the pleadings,¹ the relevant legal authorities, and the record as a whole, the Court will DENY Plaintiff's Motion for Recusal as Plaintiff has stated no legitimate grounds for the undersigned Judge's recusal. The Court will further GRANT Defendants' Motion to Dismiss as Plaintiff has failed to state a plausible claim for which relief may be granted.

I. BACKGROUND

For the purposes of the motion before the Court, the Court accepts as true the well-pled allegations in Plaintiff's Complaint. The Court does "not accept as true, however, the plaintiff's legal conclusions or inferences that are unsupported by the facts alleged." Ralls Corp. v. Comm. on Foreign Inv. in the United States , 758 F.3d 296, 315 (D.C. Cir. 2014). Further, because Plaintiff proceeds in this matter pro se, the Court must consider not only the facts alleged in Plaintiff's Complaint, but also the facts alleged in Plaintiff's other filings. See Brown v. Whole Foods Mkt. Grp., Inc. , 789 F.3d 146, 152 (D.C. Cir. 2015) ("a district court errs in failing to consider a pro se litigant's complaint ‘in light of’ all filings, including filings responsive to a motion to dismiss") (quoting Richardson v. United States , 193 F.3d 545, 548 (D.C. Cir. 1999) ); Fillmore v. AT & T Mobility Servs. LLC , 140 F. Supp. 3d 1, 2 (D.D.C. 2015) ("the Court, as it must in a case brought by a pro se plaintiff, considers the facts as alleged in both the Complaint and Plaintiff's Opposition to Defendant's Motion to Dismiss"). The Court recites only the background necessary for the Court's resolution of the pending Motion to Dismiss.

Plaintiff's allegations appear to stem from the seizure of Plaintiff's funds and other property which resulted from a guilty verdict in the criminal matter, United States v. James , Case No. 6-cr-19-EGS. In 2006, a federal grand jury returned a Superseding Indictment charging Plaintiff with multiple counts of healthcare fraud, false statements, and money laundering. James , Case No. 6-cr-19-EGS, ECF No. 3. The Superseding Indictment included a forfeiture allegation. Id. at 13-15. On March 30, 2007, a jury found Plaintiff guilty of one count of healthcare fraud, 11 counts of false statements related to healthcare matters, and eight counts of money laundering. Id. at ECF No. 37. The jury further returned a Special Verdict, finding that $1,856,812.71 and two vehicles represented property derived from or proceeds traceable to Plaintiff's criminal acts. Id. at ECF No. 41.

In 2008, Plaintiff was sentenced to 57 months of incarceration and 36 months of supervised release and was ordered to pay $1,856,812.71 in restitution. Id. at ECF No. 117. At sentencing, the judge indicated that the forfeiture of $1,856,812.71 and two vehicles were included as part of Plaintiff's sentence. Id. at ECF No. 152 at 2. Accordingly, on December 30, 2008, the court issued two final Orders of Forfeiture to that effect. Id. at ECF No. 122 (as to funds), 123 (as to vehicles).

Following the resolution of Plaintiff's criminal matter, the government continued its pursuit of the forfeiture of Plaintiff's funds and property in the civil forfeiture matter, United States v. $455,273.72 , Case No. 5-cv-356-EGS. And, in 2011, the court granted the government summary judgment. The court explained that, because Plaintiff's conviction in his criminal case was based on the same facts as the civil forfeiture matter, Plaintiff's funds and property were subject to forfeiture as the proceeds of an unlawful activity. $455,273.72 , Case No. 5-cv-356-EGS, ECF No. 73, 12-16.

Since that time, Plaintiff has filed appeals and otherwise attacked the results of his criminal and civil forfeiture matters. On October 10, 2018, Plaintiff filed a lawsuit very similar to the one currently before the Court. Nodormo v. Sessions , 18-cv-2339(CKK). In that suit, Plaintiff argued that his property had been improperly seized, that his guilty verdict in his criminal matter should be overturned, and that the Government violated the False Claims Act. Ndoromo, 18-cv-2339(CKK), Compl., ECF No. 1. On July 2, 2019, the Court dismissed Plaintiff's case, finding that Plaintiff had failed to state any claim for which relief could be granted. Plaintiff appealed the Court's dismissal, and the United States Court of Appeals for the District of Columbia Circuit affirmed the dismissal. Ndoromo v. Barr , 19-5211, 2020 WL 873550 (D.C. Cir. Feb. 13, 2020).

On November 18, 2019, Plaintiff filed in the Superior Court of the District of Columbia this lawsuit, bringing substantially the same claims as his prior lawsuit. ECF No. 1-1. Plaintiff's case was then removed to the United States District Court for the District of Columbia before Judge Amy Berman Jackson. ECF No. 1. On April 10, 2020, Defendants filed a notice of related case, and this case was ultimately reassigned to the undersigned Judge who had presided over Plaintiff's prior case, Nodormo v. Sessions , 18-cv-2339(CKK). Currently pending before the Court are Defendants' Motion to Dismiss and Plaintiff's Motion to Recuse.

II. LEGAL STANDARD

Defendants move to dismiss Plaintiff's Complaint on multiple grounds. However, as the Court finds that dismissal is proper for failure to state a claim, the Court shall concentrate on the standard for dismissal set out in Federal Rule of Civil Procedure 12(b)(6).² According to Rule 12(b)(6), a party may move to dismiss a complaint on the grounds that it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "[A] complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Rather, a complaint must contain sufficient factual allegations that, if accepted as true, "state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570, 127 S.Ct. 1955. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

III. DISCUSSION

The Court shall begin by explaining why recusal is inappropriate in these circumstances. The Court will next explain why dismissal is appropriate as Plaintiff has failed to state a claim for which relief may be granted.

A. Recusal

In his Motion, Plaintiff argues that the undersigned Judge should be recused because this Judge previously dismissed Plaintiff's claims in Nodormo v. Sessions , 18-cv-2339(CKK). Plaintiff also argues that the Court "can't be a Judge and a witness at this same time period." ECF No. 9.

Pursuant to 28 USC § 455(a), "[a]ny justice, judge, or magistrate judge of the United States shall disqualify [her]self in any proceeding in which [her] impartiality might reasonably be questioned." 28 USC § 455(a). In assessing section 455(a) motions for recusal, the D.C. Circuit applies an "objective" standard: "Recusal is required when ‘a reasonable and informed observer would question the judge's impartiality.’ " S.E.C. v. Loving Spirit Found., Inc. , 392 F.3d 486, 493 (D.C. Cir. 2004) (quoting United States v. Microsoft Corp. , 253 F.3d 34, 114 (D.C. Cir. 2001), cert. denied , 534 U.S. 952, 122 S.Ct. 350, 151 L.Ed.2d 264 (2001) ). Further, a party moving for recusal pursuant to Section 455(a) "must demonstrate the court's reliance on an ‘extrajudicial source’ that creates an appearance of partiality or, in rare cases, where no extrajudicial source is involved, ... a deep-seated favoritism or antagonism that would make fair judgment impossible." Middlebrooks v. St. Coletta of Greater Washington, Inc. , 710 F. Supp. 2d 77, 78 (D.D.C. 2010), aff'd , 2011 WL 1770464 (D.C. Cir. Apr. 4, 2011), cert. denied , 565 U.S. 879, 132 S.Ct. 243, 181 L.Ed.2d 139 (2011) (citations and internal quotation marks omitted).

Similarly, under 28 USC § 455(b), a judge shall disqualify herself "[w]here [s]he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." 28 USC § 455(b)(1). A party moving for recusal pursuant to Section 455(b) must likewise demonstrate "actual bias or prejudice based upon an extrajudicial source." Middlebrooks , 710 F. Supp. 2d at 79 (citations omitted).

Here, Plaintiff's request for recusal appears largely based on the undersigned Judge's rulings in another, similar action brought by Plaintiff, Nodormo v....