Osborne v. Carey, CIVIL ACTION NO. 2:16-cv-01651
| Decision Date | 08 March 2017 |
| Docket Number | CIVIL ACTION NO. 2:16-cv-01651 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | AJAMU OSBORNE, Plaintiff, v. MICHAEL W. CAREY, et al., Defendants. |
Pending before the Court, among other matters, are Plaintiff Ajamu Osborne's Application to Proceed without Prepayment of Fees and Costs (the "IFP application"), (ECF No. 1), Motion for Reconsideration of the Order reassigning this case, (ECF No. 9), Motion for Recusal of the undersigned district judge, (ECF No. 32), and most recent Motion to Amend the Complaint, (ECF No. 31). Also pending are Defendants Michael Carey and S. Benjamin Bryant's Motion to Dismiss, (ECF No. 37), and Motion to Seal supporting exhibits, (ECF No. 35).
For the reasons that follow, the Court DENIES the Motions for Reconsideration and for Recusal. Plaintiff's Motion to Amend will be GRANTED. Upon initial screening, Plaintiff's Amended Complaint, as modified by the Supplemental Complaint, is DISMISSED as frivolous, for failure to state a claim, and for want of jurisdiction. The IFP application is, therefore, DENIED. The Motion to Dismiss is GRANTED to the extent it seeks dismissal of this litigation. The Motion to Seal is similarly GRANTED. These rulings either moot or compel the denial of nearly all the other motions that remain outstanding in this case.1
Plaintiff, a federal inmate proceeding pro se, brings this lawsuit against several of his former attorneys, the lead Assistant United States Attorney on his case, and the former United States Attorney for this district. His claims arise from his February 3, 2015 conviction upon guilty plea to possession with intent to distribute a quantity of oxycodone. The undersigned district judge presided over the criminal proceedings and sentenced Plaintiff to a term of incarceration of 70 months, followed by a three-year term of supervised release. (See Judgment Order, ECF No. 124, Criminal Action No. 2:12-cr-00155.) On December 7, 2015, the United States Court of Appeals for the Fourth Circuit affirmed Plaintiff's conviction and sentence. United States v. Osborne, 629 Fed. App'x 559 (4th Cir. 2015). In the proceedings before the district court and on appeal, Plaintiff met the indigence requirement for appointment of counsel.
In his initial pleading, Plaintiff named as defendants three of the six criminal defense attorneys appointed to represent him during the protracted criminal proceeding: Michael Carey, S. Benjamin Bryant, and Troy Giatras. (Compl. 1, ECF No. 2.) The Complaint alleged violations of Plaintiff's civil rights under 42 U.S.C. § 1983, legal malpractice, accounting fraud, unjust enrichment, and ethical violations, all arising from Plaintiff's dissatisfaction with the outcome of his criminal case and, in many cases, renewing arguments litigated before this Court in the contextof his motion to withdraw his plea of guilty. Plaintiff has since filed two motions to amend his initial Complaint. (ECF Nos. 29, 31.) In view of the liberal standard for amendment of pleadings, Fed. R. Civ. P. 15(a), the most recent of these motions will be GRANTED. The Court will treat the Amended Complaint filed August 15, 2016, as modified by the "Supplement[al] Complaint," (ECF No. 31-1), as the operative pleading in this matter.2
Plaintiff names additional defendants in the Amended Complaint. He adds Monica D. Coleman, the lead Assistant United States Attorney on Plaintiff's case, R. Booth Goodwin, II, former United States Attorney for the Southern District of West Virginia, and Brian D. Yost and Gregory Campbell, two other attorneys appointed to represent Plaintiff during the course of the criminal proceeding. Chief and most sensational of Plaintiff's amended claims is an alleged conspiracy to violate civil rights, purportedly brought under 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988. Plaintiff also brings state law breach of contract, accounting malpractice, legal malpractice, unjust enrichment, and fraudulent concealment claims against his former attorneys, and as well as a § 1983 supervisory liability claim against Defendant Goodwin.
As stated previously, Plaintiff's IFP application remains pending. In a lawsuit initiated by a prisoner, it is the practice of the Court not to order service on the defendants until after the Court performs initial screening. This case presents somewhat of an anomaly, however, because immediately after filing his original Complaint, Plaintiff took the initiative to obtain and serve waiver of summons forms on Defendants Carey and Bryant. On June 1, 2016, Defendants Carey and Bryant executed the forms and thereby waived their right to service of a summons in this action. (ECF Nos. 14, 15.) While it is unclear from the docket whether Plaintiff attempted toobtain similar waivers from the remaining defendants, Defendants Carey and Bryant are the only defendants to have executed them. Together, Defendants Carey and Bryant have filed two motions to dismiss, first directed at the Complaint and later, the Amended Complaint.3 Plaintiff has moved to strike or, alternatively, dismiss the Motions to Dismiss. (ECF Nos. 23, 41, 43.) Plaintiff's motions do not identify grounds for relief under Rule 12(f), but rather set out arguments in opposition to those posited by Defendants Carey and Bryant. Fed. R. Civ. P. 12(f) (). Accordingly, the Court construes Plaintiff's Motions to Strike and to Dismiss as responsive memoranda and will otherwise deny the relief sought therein.
This case was initially assigned to United States District Judge John T. Copenhaver, Jr. The Clerk of the Court reassigned the case to the undersigned upon recognition of its relation to Plaintiff's criminal proceeding. Plaintiff immediately filed a motion to reconsider the transfer, followed by a motion to recuse the undersigned district judge. The Court addresses the motions to reconsider and for recusal before proceeding to screen the case.
Title 28 U.S.C. § 455 governs disqualification of federal district court judges. In pertinent part, the section reads:
28 U.S.C. § 455. The test for recusal is an objective one. United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). "The inquiry is whether a reasonable person would have a reasonable basis for questioning the judge's impartiality, not whether the judge is in fact impartial." Id. The fact that a judge ruled adversely against the movant in a related proceeding does not warrant recusal, see United States v. Parker, 742 F.2d 127, 128-29 (4th Cir. 1984), and a judge is not required to recuse himself for nothing more than "unsupported, irrational or highly tenuous speculation." Cherry, 330 F.3d at 665 (citing United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)).
Plaintiff's recusal motion is premised on a number of fanciful allegations. Plaintiff first claims that the undersigned has "personal knowledge of the disputed evidentiary facts concerning these proceeding[s]." (Mot. for Recusal at 1, ECF No. 32.) Though Plaintiff does not specify the grounds for his belief nor the evidence to which he refers, the Court assumes that Plaintiff alludes to the Court's administration over an adversarial evidentiary hearing on Plaintiff's motion to withdraw his guilty plea in the criminal case.
Some factual background is in order. From the time he first appeared before this Court to enter a plea of guilty, Plaintiff maintained suspicions that the Government would seek to enhance his sentence with evidence unconstitutionally obtained.4 At some point during the preparation ofthe pre-sentence investigation report, his suspicions ripened into a theory that the Metropolitan Drug Enforcement Network Team ("MDENT") mishandled evidence and failed to maintain an adequate chain of custody for controlled substances attributed to Plaintiff as relevant conduct. Unhappy with the way his various defense attorneys championed these arguments, Plaintiff moved for the appointment of new counsel four times. As the pool of available Criminal Justice Act ("CJA") panel members with sufficient experience to deal with such a client shrank, the Court turned to Defendant Carey, a non-panel attorney, to represent Plaintiff. Mr. Carey quickly took up Plaintiff's cause. He filed a motion to withdraw the guilty plea on Plaintiff's behalf and doggedly pursued his client's theories during a two-day evidentiary hearing. In the end, Plaintiff's arguments were unavailing. The Court denied the motion to withdraw the guilty plea on August 14, 2014.
The Court now turns to the arguments supporting recusal. Plaintiff's contention that the Court has personal knowledge of disputed facts at issue in this civil action is simply untrue. For purposes of § 455(b)(1), personal knowledge must come from an extrajudicial source. United States v. Davis, 529 Fed. App'x 375, 378 (4th Cir. 2013); see In re Kensington Intern. Ltd., 368 F.3d 289, 308 n. 18 (3d Cir. 2004) . The undersigned's knowledge of the facts relating to this case comes only from serving as the presiding judge in Petitioner's criminal case. The Court's unfavorable rulings in the criminal matter are not a basis for recusal either. "[J]udicial rulings alone almost never...
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