Alan Wayne Davis v. Dwayne Kvalheim ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 8, 2008
No. 07-12754 THOMAS K. KAHN
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 07-00566-CV-ORL-31KRS
ALAN WAYNE DAVIS,
Petitioner-Appellant,
versus
DWAYNE KVALHEIM,
et al.,
Respondents-Appellees.
______________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(January 8, 2008)
Before ANDERSON, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Alan Wayne Davis, a pro se state prisoner, filed a Racketeer Influenced and
Corrupt Organizations Act (“RICO”) action, along with claims pursuant to 42
U.S.C. §§ 1983, 1985, and 1986, against 129 defendants, including a Florida state
senator, Seminole County commissioners, and all of the witnesses, attorneys, and
judges who were involved in his trial, appeals, or subsequent litigation related to
his prosecution for felony littering under Florida law. Davis alleges that these
defendants, including the federal district court judge to whom this action was
assigned, Judge Presnell, conspired together to infiltrate the government in order to
pass, enforce, and uphold fascist laws that violated his civil and constitutional
rights. Specifically, Davis maintained that the defendants conspired to interpret
and apply Fla. Code §§ 403.413(4)(c), 823.01, 386.041(1)(e), and Seminole
County Code § 95.3(p) (“the statutes”)1 in a fascist and arbitrary manner against
him, and then they conducted unconstitutional searches of his property, attempted
to extort money from him, failed to provide him with proper notice of hearings,
and committed perjury during his trial and appeals in order to secure a conviction.
1
The statutes and ordinance prohibit littering and the creation of public nuisances. While
the record is not clear, it appears from Davis’s complaint that he was creating a public nuisance,
injurious to the public health, by keeping what he called art, but the government called litter, on his
property, and which the government charged could have lead to mosquitoes and rodents. The
defendants were individuals who were involved in the case leading to his conviction, either as a
witness, attorney, or judge, or were involved in subsequent litigation that he has commenced relating
to his conviction. As for his extortion allegations, it appears that they were fines that he had to pay
for violating the county ordinance.
2
Additionally, he asserted that every defendant violated these same statutes, but the
defendants were not prosecuted because they were members of the conspiracy.
Davis stated that Judge Presnell was named as a defendant because Davis
previously had informed him about the conspiracy and perjury committed during
his trial and appeals, and Judge Presnell then chose to join the conspiracy by
allowing the other conspirators to remain at large, which violated 42 U.S.C. §
1986.2 Davis also stated that he would continue to amend his complaint to include
any judge who (1) violated the statutes and did not release him or (2) failed to
prevent the defendants from extorting money to fund their criminal enterprise.3
The district court sua sponte dismissed, with prejudice, the complaint as
frivolous, pursuant to Jefferson Fourteenth Associates v. Wometco de Puerto Rico,
Inc., 695 F.2d 524, 526 & n.3 (11th Cir. 1983), concluding that Davis was using
the court to “intimidate and heckle those he imagines have done him wrong, rather
than as a forum for the redress of legitimate grievances.” Additionally, Judge
Presnell noted that he would normally have to recuse himself, pursuant to 28
U.S.C. § 455(b)(5)(i), since he is a named defendant, but he concluded that recusal
is not required where a plaintiff “baselessly sues or threatens to sue the judge,”
2
Davis previously had filed a similar complaint, which Judge Presnell dismissed for failure
to prosecute because Davis never served the defendants despite multiple orders to do so.
3
It appears from Davis’s complaint that the alleged extortion was actually fines that he had
to pay for violating the statutes.
3
which was the case here because the allegations against him were just as frivolous
as the remainder of the complaint.
On appeal, Davis first argues that Judge Presnell erred by not recusing
himself when he was a named defendant, which resulted in Fifth Amendment due
process and First Amendment right to redress violations. We review a judge’s
decision not to recuse himself for an abuse of discretion. United States v. Berger,
375 F.3d 1223, 1227 (11th Cir. 2004). Additionally, we liberally construe pro se
pleadings because we hold them to a less stringent standard than attorney-drafted
pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
Federal law states that a judge “shall disqualify himself” when he is a party
to the proceeding, and the parties cannot waive this provision. 28 U.S.C.
§ 455(b)(5)(i), (e); see also United States v. Patti, 337 F.3d 1317, 1321 (11th Cir.
2003) (stating that recusal under § 455(b) is “mandatory”). This section creates a
“self-enforcing obligation” for judges to recuse themselves, and doubt regarding
whether recusal is required must be resolved in favor of recusal. Murray v. Scott,
253 F.3d 1308, 1310 (11th Cir. 2001). Additionally, we have held that, once one
of the enumerated circumstances in § 455(b) is established, “there can be no
dispute about the propriety of recusal,” which is mandatory. Patti, 337 F.3d at
1321-22; Murray, 253 F.3d at 1312. Furthermore, we review whether a judge
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should have recused himself “in light of the ultimate issue in the case,” and it is
irrelevant if the judge only ruled on a “potentially dispositive threshold issue.”
Murray, 253 F.3d at 1311. We have not addressed whether there is an exception to
this rule for when the judge finds that he was frivolously named a defendant.
However, we have held that, under the rule of necessity, when a defendant
indiscriminately brings suit against all of the judges of a court, the judges may hear
the case if there is no other judge from that court available to hear it. See Bolin v.
Story, 225 F.3d 1234, 1238-39 (11th Cir. 2000).
Here, Judge Presnell did not err by failing to recuse himself. Davis indicated
that he would have eventually amended his complaint to add all of the judges on
the U.S. District Court for the Middle District of Florida,4 and therefore the district
court was relieved of its obligation to recuse itself under the rule of necessity.
Were Davis left to make good on his threat, there would have been no judge from
the court to hear the case. We have also applied the harmless error test to analyze a
judge’s failure to recuse him or herself pursuant to § 455(b). See Parker v.
Connors Steel Co., 855 F.2d 1510, 1528 (11th Cir. 1988) (“Therefore, we are
confident that the Supreme Court intended its [harmless error] test to be applied to
4
In numerous documents filed with the court, Davis made clear his intention to add recusal
allegations against any judge who construed the littering laws contrary to Davis’s interpretation
thereof–i.e. against any judge who ruled against him.
5
all § 455 violations, whether involving subsection a or subsection b.”). We are
confident that even if Judge Presnell’s decision not to recuse himself was a
technical violation of § 455(b) that there was no harm in his failure to do so
because of the frivolousness of Davis’s claims, discussed below.
Davis also argues that the district court abused its discretion by dismissing
his complaint as frivolous. He argues on appeal that his complaint was not
frivolous for the following reasons: (1) conspiracy to violate civil rights is a felony
under 42 U.S.C. § 1985; (2) allowing perjury is a due process and equal protection
violation; and, (3) it is a due process and equal protection violation for him to be
incarcerated while those who helped convict him and upheld his conviction are
free, despite the fact that they committed the same crimes.
We have not stated what standard of review we apply when a district court
sua sponte dismisses a complaint as frivolous pursuant to its inherent powers. See
Jefferson Fourteenth Assocs., 695 F.2d at 526. We review a district court’s sua
sponte dismissal of a claim as frivolous, pursuant to 28 U.S.C. § 1915A, for an
abuse of discretion. See Bilal v. Driver, 251 F.3d 1346, 1348-49 (11th Cir. 2001)
(stating that “[a] determination of frivolity is best left to the district court”); see
also Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002) (stating that we review
a sua sponte frivolity dismissal, pursuant to § 1915(e)(2)(B)(i), for an abuse of
6
discretion). Additionally, we can affirm the district court’s decision on any ground
supported by the record. Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004).
We have recognized that district courts have the inherent power to sua
sponte dismiss frivolous suits without giving notice to the parties. See Jefferson
Fourteenth Assocs., 695 F.2d at 526. Under § 1915A, a complaint is frivolous if it
is “without arguable merit either in law or fact.” Bilal, 251 F.3d at 1349. In
discussing what is frivolous in the context of 28 U.S.C. § 1915(e)(2)(B)(i), we also
have held that “[a] district court may conclude a case has little or no chance of
success and dismiss the complaint before service of process when it determines
from the face of the complaint that the factual allegations are ‘clearly baseless’ or
that the legal theories are ‘indisputably meritless.’” Carroll v. Gross, 984 F.2d
392, 393 (11th Cir. 1993).
Here, the district court did not abuse its discretion in sua sponte dismissing
Davis’s 140-page complaint as frivolous because, as the district court determined,
his allegations were clearly baseless and without arguable merit in fact, and he is
simply employing “the legal system as a tool to intimidate and heckle those he
imagines have done him wrong.”
Upon review of the record and consideration of Davis’s brief, we discern no
reversible error. Accordingly, we affirm.
7
AFFIRMED.
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