Donna Marie Smith v. John Hildebrand , 244 F. App'x 288 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 3, 2007
No. 06-15102 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-02966-CV-CAM-1
DONNA MARIE SMITH,
Plaintiff-Appellant,
versus
JOHN HILDEBRAND,
PIPER QUINN,
JOSEPH GAYLE,
MARIA GOLICK,
PATRICK HEAD,
J. LYNN RAINEY, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 3, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Donna Marie Smith, proceeding pro se, appeals the dismissal of her in forma
pauperis (“IFP”) action, in which she alleged violations of the civil provisions of
the Racketeer Influenced & Corrupt Organizations Act (“RICO”) and deprivation
of her civil rights, in violation of 42 U.S.C. § 1983. 1 The district court deemed the
action as frivolous under 28 U.S.C. § 1915(e)(2). On appeal, Smith contends that
the district court judge should have recused himself from consideration of her
lawsuit. She also argues the district court erroneously determined that her claims
were frivolous under § 1915(e)(2), and that the judges, prosecutors, and probation
officer, all of whom she named as defendants, were entitled to absolute immunity
barring her suit against them. We affirm.2
In her complaint, Smith alleged that, as part of a racketeering enterprise,
judges who presided over her criminal and habeas proceedings; prosecutors who
prosecuted the criminal charges and later probation violations against her; her
probation officer; an independent court reporter; and her public defender acted and
conspired to deprive her of liberty and property in the conduct of her criminal
proceedings, supervision of her probation, and pursuit of appellate and collateral
1
Smith does not allege that any defendant discriminated against her of the basis of her
race or alienage. Therefore, she did not state a 42 U.S.C. § 1981 claim against any defendant.
See 42 U.S.C. § 1981.
2
WE DENY Smith’s motion for reconsideration of our order granting Appellants’ motion
for leave to file their brief out of time, and GRANT her motion to file the reply brief out of time.
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review. Smith also alleged that her former employers participated in the
racketeering activity and conspiracy when they fired her from her position as a
paralegal based on her criminal background history. Additionally, Smith alleged
that Georgia Board of Nursing improperly revoked her nursing license.
We review a district court’s refusal to recuse for abuse of discretion.
Diversified Numismatics v. City of Orlando, 949 F.2d 382 (11th Cir. 1991).
28 U.S.C. § 455 provides that:
(a) Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, . . .
28 U.S.C. § 455(a),(b)(1). The legal standard for applying § 455 is “whether an
objective, disinterested, lay observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain a significant doubt about the
judge’s impartiality.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.
1988)
We have stated that prior adverse rulings do not provide a basis for holding
that a court’s impartiality is in doubt. Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th
Cir. 2001). Further, “it has long been regarded as normal and proper for a judge
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. . . to sit in successive trials involving the same defendant.” Liteky v. United
States, 510 U.S. 540, 550 (1994). From our careful review of the record, we
discern no abuse of the district judge’s discretion in his denial of the motion to
recuse, in which Smith primarily challenged prior adverse rulings and in no way
enumerated objective reasons to call the judge’s impartiality into doubt.
As for Smith’s challenge to the frivolity dismissal under § 1915(e)(2), our
review likewise is for abuse of discretion. Bilal v. Driver, 251 F.3d 1346, 1349
(11th Cir. 2001). An abuse of discretion occurs if a judge fails to apply the proper
legal standard, fails to follow proper procedures, or makes findings of fact that are
clearly erroneous. In Re Red Carpet of Panama City Beach, 902 F.2d 883, 890
(11th Cir. 1990). We review IFP dismissals for failure to state a claim de novo,
using the same standards that govern Federal Rule of Civil Procedure 12(b)(6)
dismissals and view the allegations in the complaint as true. Mitchell v. Farcass,
112 F.3d 1483, 1490 (11th Cir. 1997).
The district court has authority to dismiss an IFP case if it determines that
the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). A case is frivolous if (1) the
factual allegations are “clearly baseless” or (2) it is based on a “indisputably
meritless legal theory.” Carroll v. Gross, 984 F.2d 392, 393 (11th Cir. 1993). The
court may also dismiss an action if it determines that the complaint fails to state a
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claim. 28 U.S.C. § 1915(e)(2)(ii). A complaint fails to state a claim when it
appears beyond doubt that the plaintiff can prove no set of facts in support of her
claim which would entitle her to relief. Marsh v. Butler County, Ala., 268 F.3d
1014, 1022-23 (11th Cir. 2001) (en banc) (considering Fed. R. Civ. P. 12(b)(6)
dismissal of § 1983 inmate action). A court is not required to permit a plaintiff to
amend her pleadings where amendment would be futile. See Corsello v. Lincare,
428 F.3d 1008, 1014-15 (11th Cir. 2005) (affirming denial of plaintiff’s motion to
amend his complaint under Fed. R. Civ. P. 15), cert. denied, 127 S. Ct. 42 (2006).
Under the RICO, a person who is injured by reason of a criminal RICO
violation may bring a civil action against the RICO violator. 18 U.S.C. § 1964;
McCaleb v. A.O. Smith Corp., 200 F.3d 747, 751 (11th Cir. 2000). It is well-
settled that the alleged injury must arise from an unlawful act specified in 18
U.S.C. § 1961(1). Beck v. Prupis, 529 U.S. 494, 504-06 (2000); Langford v. Rite
Aid of Ala., Inc., 231 F.3d 1308, 1311-12 (11th Cir. 2000) (defining racketeering
activity as those acts listed in §1961(1)). Because Smith failed to allege any facts
so much as suggesting that any defendant committed one of the criminal violations
listed in § 1961(1), the district court properly concluded that her RICO claims were
frivolous.
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We are unpersuaded by Smith’s remaining claims. Accordingly, we affirm
the district court’s dismissal of her in forma pauperis (“IFP”) action as frivolous,
under 28 U.S.C. § 1915(e)(2), and denial of her motion to recuse.
AFFIRMED.
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