United States District Court, M.D. Florida, Orlando Division
LEZA S. TELLAM, Plaintiff,
TIFFANY MOORE RUSSELL; FAYE L. ALLEN; and KEVIN WEISS, Defendants.
DALTON JR. UNITED STATES DISTRICT JUDGE
the Court are: (1) U.S. Magistrate Judge Thomas B.
Smith's Report and Recommendation (Doc. 23
(“R&R)); and (2) pro se
Plaintiff's objection to U.S. Magistrate Judge Thomas B.
Smith's April 25, 2019 order (Doc. 26
(“Objection”)). On review, the
Objection is overruled, and the R&R adopted.
proceeding pro se, brought this action alleging
violations of the Fair Debt Collection Practices Act and
First, Ninth, and Fourteenth Amendments of the U.S.
Constitution against Defendants, two Florida judges and a
clerk of court. (Doc. 1.) The judicial Defendants moved for a
more definite statement (Doc. 11), and the next day
Magistrate Judge Smith sua sponte ordered Plaintiff
to amend her Complaint to show how and why the Court has
subject matter jurisdiction and explain her claims against
Defendants (Doc. 14, p. 2). Magistrate Judge Smith explained
the Rooker-Feldman doctrine to Plaintiff so she
could “be mindful” of its potential applicability
and stated that he would recommend dismissal of her Complaint
for lack of subject matter jurisdiction should she fail to
timely amend. (Doc. 14, p. 2.)
did not respond to the motion for a more definite statement,
but because Magistrate Judge Smith issued his Order directing
Plaintiff to amend, he denied the motion as moot. (Doc. 17.)
When Plaintiff did not amend her Complaint, Magistrate Judge
Smith recommended dismissing her case without prejudice for
lack of subject matter jurisdiction without leave to amend in
this Court. (Doc. 23
(“R&R”).) In response,
Plaintiff moved to recuse Magistrate Judge Smith and set
aside his Order requiring her to amend her pleading,
believing: (1) a conflict existed based on Magistrate Judge
Smith's state court service; and (2) his Order requiring
her to amend, sua sponte, based on the pleading
standard was unfounded and something to be raised by
Defendants. (Doc. 24
(“Motion”).) Judge Smith denied
the Motion on both grounds, finding no basis to recuse
himself and that Plaintiff's request to set aside his
order was untimely and had been superseded by the R&R.
(Doc. 25 (“April 25 Order”).) He
noted Plaintiff could still object to his R&R.
(Id. at 4.)
Plaintiff filed an objection to the April 25 Order,
asserting: (1) Magistrate Judge Smith should still be recused
(“Recusal Objection”); and (2)
her Complaint clearly alleges federal question jurisdiction
and she shouldn't be pressed to fine tune her Complaint
at this early stage (“Amendment
Objection”). (Doc. 26.) As the Objection
pertains to both the recusal issue and whether
Plaintiff's Complaint requires amending, the Court
construes it as directed to both the April 25 Order and
R&R. Both are ripe.
the Court address's Plaintiff's appeal of the April
25 Order on the basis that that Magistrate Judge Smith
“meets the mandatory test” for recusal because he
was previously an employee of the Ninth Judicial Circuit.
may seek review of a magistrate judge's ruling on a
non-dispositive matter by serving and filing objections
within fourteen days after being served with a copy.
Fed.R.Civ.P. 72(a). A non-dispositive matter is one that does
not dispose of any party's claim or defense. Smith v.
Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th
Cir.2007). If a proper objection is made, “[t]he
district judge in the case must consider timely objections
and modify or set aside any part of the order that is clearly
erroneous or is contrary to law.” Fed.R.Civ.P. 72(a);
see Howard v. Hartford Life & Acc. Ins. Co., 769
F.Supp.2d 1366, 1372 (M.D. Fla. 2011) (noting that under Rule
72(a), “in order to prevail, [the party who makes the
objection] must establish that the order is clearly erroneous
or contrary to law.”); Ray v. Cutter Labs., Div. of
Miles, Inc., 746 F.Supp. 86, 87 (M.D. Fla. 1990)
(“[I]t is proper to apply the clearly erroneous
standard when reviewing a magistrate's order.”). A
finding is clearly erroneous “when although there is
evidence [in the record] to support it, the reviewing court
on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 333 U.S. 364, 395,
(1948). A finding is considered contrary to law if it does
not apply or misapplies the relevant statutes, case law, or
rules of procedure. Tompkins v. R .J. Reynolds Tobacco
Co., 92 F.Supp.2d 70, 74 (N.D.N.Y. 2000).
Plaintiff appeals Magistrate Judge Smith's April 25 Order
denying her motion to recuse him. A judge, including a
magistrate judge, “shall disqualify himself in any
proceeding in which his impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). Section 455(a)
creates two primary reasons for recusal: (1) “when
there is an appearance of impropriety;” and (2)
“when any of the specific circumstances set forth in
[§ 455(b)] exist, which show the fact of
partiality.” United States v. Patti, 337 F.3d
1317, 1321 (11th Cir. 2003) (citing 28 U.S.C. § 455(b)).
In reviewing a motion for recusal, a court should consider
“whether an objective, disinterested, lay observer
fully informed of the facts underlying the ground on which
recusal was sought would entertain a significant doubt about
the judge's impartiality.” Id. (quoting
Parker v. Connors Steel Co., 855 F.2d 1510, 1524
(11th Cir. 1988)). Adverse rulings are rarely grounds for
recusal. In re Walker, 532 F.3d 1304, 1311 (11th
Cir. 2008) (citing Liteky v. United States, 510 U.S.
540, 554 (1994)).
seeks recusal of Judge Smith because of his prior employment
on Florida's Ninth Judicial Circuit. (Doc. 24; Doc. 26.)
The Court finds Magistrate Judge Smith's former service
does not disqualify him to preside over this case. See,
e.g., Santiago Manuel A. v. Jamison, No.
2:13-cv-781-FtM-29CM, 2015 WL 5091990, at * 3-4 (M.D. Fla.
Aug. 28, 2015) (“Regardless of [the judge's] prior
employment, there is no evidence that the rulings on
discovery and extensions of time stem from bias.”). So
Magistrate Judge Smith's prior employment does not give
rise to an “appearance of impropriety” and none
of the § 455(b) circumstances apply. See 28
U.S.C. §§ 455(a)-(b). Thus, no basis for Magistrate
Judge Smith's recusal exists and the Recusal Objection is
Amending the Complaint
the Court considers Magistrate Judge Smith's denial of
Plaintiff's motion to set aside his order requiring her
to amend the Complaint (Doc. 25, pp. 3-4) and the R&R
recommending dismissal of Plaintiff's Complaint without
prejudice for lack of subject matter jurisdiction without
leave to amend (Doc. 23).
R&R, Magistrate Judge Smith found the Complaint failed to
satisfy the Rule 8 pleading standard and to the extent
Plaintiff seeks review of state court final judgments the
Court does not have jurisdiction pursuant to the
Rooker-Feldman doctrine. (Id. at 2-4.)
Accordingly, because Plaintiff did not file an amended
Complaint when given the opportunity to do so, Magistrate
Judge Smith recommends denying the Complaint without
prejudice for lack of subject matter jurisdiction without
leave to amend. (Id. at 4.) Plaintiff filed a motion
to set aside Magistrate Judge Smith's order requiring
Plaintiff file an amended complaint (Doc. 24), which
Magistrate Judge Smith denied, finding the order requiring an
amended complaint was superseded by the R&R (Doc. 25, pp.
3-4). Plaintiff then filed the Objection, in part challenging