Mattie Lomax v. Harvey Ruvin

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-11495 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 26, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cv-23293-UU
MATTIE LOMAX,
Plaintiff-Appellant,
versus
HARVEY RUVIN,
SHIRLEY SHABAZZ, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 26, 2012)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Liberally construing Mattie Lomax’s pleadings,1 we determine that she has
appealed the district court’s post-judgment denial of (1) Lomax’s March 3, 2011,
motion to recuse; and (2) Lomax’s March 11, 2011, motion to amend her motion
for recusal and for reconsideration of the district court’s dismissal of Lomax’s
amended complaint.2
I. MOTIONS TO RECUSE
1
Lorisme v. I.N.S., 129 F.3d 1441, 1444 n.3 (11th Cir. 1997).
2
In order to determine exactly what issues are properly on appeal, we must examine
the relevant procedural history. Lomax filed her amended complaint on November 22, 2010. The
district court dismissed it on January 11, 2011, because it had “no arguable basis in law or in fact.”
Lomax then filed a Motion for Judgment as a Matter of Law on February 3, 2011, and the district
court (construing it as a motion for reconsideration) denied it on February 18, 2011.
Lomax then filed a Motion to Recuse on March 8, 2011, and it was denied on March 14,
2011. Lomax filed a “Motion Amend to Recuse” on March 11, 2011. This “Motion Amend to
Recuse” stated nothing about recusal but included a demand for a jury trial and a citation to an
Eleventh Circuit case on the topic of immunity, which bore a relationship to the merits of Lomax’s
amended complaint. The district court summarily denied this motion on March 23, 2011. We
construe Lomax’s “Motion Amend to Recuse” to include both (1) another motion for recusal and
(2) another motion for reconsideration of the district court’s dismissal of Lomax’s amended
complaint.
Lomax’s notice of appeal stated that she was appealing the district court’s denial of her
“Motion Amend to Recuse.” We construe that to also include the denial of her initial Motion to
Recuse. Osterneck v. E.T. Barwick Indus., Inc., 825 F.2d 1521, 1528-29 (11th Cir. 1987).
Therefore, the proper issues on appeal are (1) the district court’s March 14, 2011, denial of Lomax’s
initial Motion to Recuse; (2) the district court’s March 23, 2011, denial of Lomax’s motion to amend
her motion for recusal; and (3) the district court’s March 23, 2011, denial of Lomax’s motion for
another reconsideration of dismissal. See id.; Lorisme, 129 F.3d at 1444 n.3.
The district court’s actual dismissal of Lomax’s amended complaint is not properly on appeal
since it was not included in Lomax’s notice of appeal. Osterneck, 825 F.2d at 1528-29 (“The general
rule in this circuit is that an appellate court has jurisdiction to review only those judgments, orders
or portions thereof which are specified in an appellant’s notice of appeal. Although we generally
construe a notice of appeal liberally, we will not expand it to include judgments and orders not
specified unless the overriding intent to appeal these orders is readily apparent on the face of the
notice.”) (emphasis added and citations omitted).
2
We review a district court’s denial of a motion for recusal for abuse of
discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999). Under the
abuse of discretion standard, we will affirm the refusal to recuse unless we
“conclude that the impropriety is clear and one which would be recognized by all
objective, reasonable persons.” Id.A federal judge must disqualify herself if her “impartiality might reasonably
be questioned,” or where a judge “has a personal bias or prejudice concerning a
party,” has participated as counsel in the matter, or has a financial interest in the
matter. 28 U.S.C. § 455(a), (b). Under § 455(a), challenges to a judge’s “ordinary
efforts at courtroom administration,” including “judicial rulings, routine trial
administration efforts, and ordinary admonishments (whether or not legally
supportable) to counsel and to witnesses,” are not sufficient to require a judge to
recuse herself. Liteky v. United States, 510 U.S. 540, 556, 114 S. Ct. 1147, 1157,
1158 (1994).
While we liberally construe the pleadings of pro se litigants, Lomax fails to
present any argument relevant to the motions for recusal. Because she has
presented no argument germane to these issues, Lomax has abandoned her appeal
with respect to the denials of recusal. Rowe v. Schreiber, 139 F.3d 1381, 1382 n.1
(11th Cir. 1998). Even if we consider the merits, we find that the district court did
3
not abuse its discretion under 28 U.S.C. § 455(a) or (b). There is no evidence that
the district court judge’s impartiality could be questioned, nor that she had any
personal bias or financial interest in the case.
II. MOTION FOR RECONSIDERATION
The denial of a motion for reconsideration is reviewed for abuse of
discretion. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 842
(11th Cir. 2008). To prevail on a motion for reconsideration, the moving party
must present new facts or law of a strongly convincing nature. Slomcenski v.
Citibank, N.A., 432 F.3d 1271, 1276 n.2 (11th Cir. 2005). There is no abuse of
discretion where the district court denies a motion for reconsideration that merely
“raise[s] arguments which could, and should, have been made before the judgment
is issued.” Lussier v. Dugger, 904 F.2d 661, 667 (11th Cir. 1990).
Lomax has not met her burden. First, Lomax has not presented any facts at
all in her brief. Second, none of the cases cited in her brief are new or strongly
convincing. Accordingly, it was not error for the district court to deny Lomax’s
March 11, 2011, motion to the extent that it requested reconsideration of the
district court’s dismissal of the amended complaint. Lussier, 904 F.2d at 667.
Finding no reversible error, we affirm the district court’s denial of Lomax’s
motions to recuse and her motion for reconsideration.
4
AFFIRMED.3
3
Lomax’s motion for leave to file a reply brief out-of-time is GRANTED. Her request
for oral argument is DENIED.
5