Stringer v. Funchess , 291 F. App'x 617 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 29, 2008
No. 08-60265 Charles R. Fulbruge III
Summary Calendar Clerk
CHARLES L. STRINGER
Plaintiff-Appellant
v.
KATHY B. FUNCHESS; GENEVA
LINDSEY; LENGELL WILLIAMS;
TAMMIE MACK; REGINA LAURY;
LORRAINE STEPHENS; UNKNOWN
OR; UNKNOWN APXICIL; DONALD
TAYLOR; CHARLES BARBOUR; DOUGLAS
ANDERSON; GEORGE SMITH; PEGGY
HOBSON CALHOUN; RONNIE CHAPPELL;
CITY OF JACKSON; SIDNEY JOHNSON;
CHARLES T. DAVIS; JOHN DOES
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:06-CV-223
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 08-60265
Plaintiff-Appellant, Charles L. Stringer (“Stringer”), appeals the district
court’s final judgment of dismissal, arguing that (1) the magistrate and district
court judges should have been disqualified; (2) the Defendants-Appellees
violated the American with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101
et seq.; (3) the district court erred in dismissing the complaint as frivolous; and
(4) the magistrate judge failed to conduct an omnibus hearing. For the following
reasons, we AFFIRM the district court’s judgment.
I. Factual and Procedural Background
Stringer brought this suit against several defendants under the ADA and
42 U.S.C. §§ 1983 and 1985. The crux of the complaint relates to Stringer’s
attempt to obtain more food stamps and grants for utility bills. Stringer alleged
that certain defendants conspired to violate his civil rights and other defendants
failed to write policies and procedures to prevent the conspiracy among
defendants. Stringer requested, inter alia, that the district court “[i]ssue a
Preliminary Injunction or a Temporary Restraining Order directing the
defendants to pay the gas bill as they are already supposed to do!”
Stringer moved to recuse the magistrate and district court judges.
Stringer stated several reasons for the recusal, including that neither judge
“would be fair to any white person.” The magistrate judge entered an order
denying the motion seeking her recusal. The district court judge did not enter
an order expressly addressing the motion seeking his recusal.
Stringer sought leave to proceed in forma pauperis. The magistrate judge
granted the motion to proceed in forma pauperis and recommended that the
complaint be dismissed as frivolous. The district court adopted the Report and
Recommendation (“R &R”) and entered a final judgment dismissing the action
as frivolous. Stringer filed a motion for reconsideration of the judgment, and the
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No. 08-60265
district court denied the motion for reconsideration. Stringer now appeals the
judgment and orders denying the motions for recusal.1
II. Discussion
A. Motions to Recuse
Stringer filed motions to recuse both the district court judge and the
magistrate judge pursuant to 28 U.S.C. §§ 144 and 455. Both judges denied the
motions to recuse, although the district court judge’s denial was implicit in the
final judgment dismissing the action. See Norman v. Apache Corp., 19 F.3d
1017, 1021 (5th Cir. 1994); see also Webber v. Fed. Bureau of Prisons, 200 Fed.
App’x 335, 337 (5th Cir. 2006) (unpublished) (“The denial of the recusal motion
was implicit in the entry of final judgment dismissing the complaint.”) (citation
omitted). We review denials of motions to recuse for abuse of discretion.
Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003).
Under § 455, a federal judge “shall disqualify himself in any proceeding in
which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). A
judge must also disqualify himself under various circumstances enumerated in
§ 455(b). See id. § 455(b). Under § 144, a judge must reassign a case when a
party “makes and files a timely and sufficient affidavit that the judge before
whom the matter is pending has a personal bias or prejudice either against him
or in favor of any adverse party.” Id. § 144; see Davis v. Bd. of Sch. Comm’rs, 517
F.2d 1044, 1051 (5th Cir. 1975) (“[T]he judge must pass on the legal sufficiency
of the affidavit, but may not pass on the truth of the matters alleged.”) (citations
omitted).
1
Stringer’s notice of appeal does not mention the orders denying the motions for
recusal, but we will review those orders as sufficiently related to the final judgment. See Trust
Co. of La. v. N.N.P. Inc., 104 F.3d 1478, 1485 (5th Cir. 1997) (“[A]n appeal from a final
judgment sufficiently preserves all prior orders intertwined with the final judgment.”).
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No. 08-60265
The facts stated in Stringer’s affidavits are not legally sufficient to support
a recusal motion under either recusal statute. Therefore, the district court did
not abuse its discretion by denying the motions to recuse.
B. Dismissal
We review a district court’s dismissal as frivolous for abuse of discretion.
Norton v. Dimazana, 122 F.3d 286, 291 (5th Cir. 1997). We find that Stringer’s
claims are legally frivolous, and the district court did not abuse its discretion.
Stringer’s remaining assignments of error are without merit. Accordingly, this
appeal is dismissed. See 5TH CIR. R. 42.2.
III. Conclusion
We AFFIRM the district court’s final judgment, including the denial of
Stringer’s motions for recusal. Stringer also filed a motion for appointment of
counsel, which is DENIED. This appeal is DISMISSED.
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