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Rivers v. Bowman

United States District Court, W.D. Virginia, Lynchburg Division

June 27, 2019

GARY M. BOWMAN, et al., Defendants.


          Elizabeth K. Dillon United States District Judge.

         Plaintiff Crystal VL Rivers, proceeding pro se, recently paid the filing fee for this civil case. At the same time, she filed a motion to amend her complaint, which was also titled as a “motion to validate.” (Dkt. No. 14.) That motion, as well as several other motions filed before she paid the filing fee, are addressed herein.

         I. DISCUSSION

         A. Motion for Reconsideration Concerning Recusal (Dkt. No. 11)

         Because a reassignment of this case would mean that this court would not be ruling on her other pending motions, the court turns first to Rivers's request for reassignment of the case.

         In a prior order (Dkt. No. 10), the court denied as moot a motion by Rivers to disqualify the “judges of the Lynchburg Division of this court.” Her motion only mentioned by name two judges: Judge Moon, to whom this case was initially assigned, and United States Magistrate Judge Robert Ballou. Because the case was transferred after the filing of the recusal motion to the undersigned, who is based in Roanoke, and because Rivers's motion included a request that the case be moved to the Roanoke Division, the court found the motion moot. (Dkt. No. 10.)

         In response, Rivers filed a motion for reconsideration. (Mot. Recons., Dkt. No. 11.) In it, she describes this case as a “complex” RICO case and asks that the case be transferred to the Eastern District of Virginia and assigned to a three-judge panel of judges familiar with “complex banking and money laundering, RICO Racketeering cases.” (Id. at 3.) Her motion repeatedly references the “unique” and “complex” nature of her claims. She also asserts, without any factual support, that many of the judges and staff in the Western District “may have conflict[s] of interests” concerning a number of the named defendants, who live or work in this district or are attorneys who practice before this court. Lastly, she asserts as a basis for recusal that a fellow judge of this court, United States Magistrate Judge Robert S. Ballou, may be a potential witness in this case.

         The court has carefully reviewed her motion and its assertions, but finds no grounds for transfer or recusal. In short, as discussed below, she has not pointed to anything specific to the undersigned that would warrant recusal.

         First, to the extent the case is a complicated one, this court is capable of addressing complicated matters. To the extent her request is based on alleged “conflicts of interest, ” Rivers seeks recusal under § 455(a), which directs a judge to recuse “in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). The standard to be applied is an objective one and directs a judge to recuse herself if “a reasonable person with knowledge of relevant facts might reasonably question [her] impartiality.” United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003). “The analysis assumes that a reasonable person not only knows all the relevant facts, but also understands them.” Kolon Indus., Inc. v. E.I. duPont de Nemours & Co., 846 F.Supp.2d 515, 531 (E.D. Va. 2012) (internal citations omitted); United States v. Nixon, 267 F.Supp.3d 140, 148 (D.D.C. 2017) (“The Court must consider how the facts would appear to a ‘well-informed, thoughtful and objective observer, rather than the hypersensitive, cynical, and suspicious person.'”) (citations omitted). In making any recusal decision, moreover, the court must be cognizant of “the need to prevent parties from too easily obtaining the disqualification of a judge, thereby potentially manipulating the system for strategic reasons.” In re Bulger, 710 F.3d 42, 47 (1st Cir. 2013). This last consideration has some bearing here, as Rivers requests transfer to another district that she believes is more capable of handling her case and that she believes will be more “favorable” to her. (Mot. Recons. 4, 8.)

         In claiming that all of the judges and magistrate judges here should be recused, Rivers alleges circumstances that occur with some regularity in cases handled by judges of this court and that do not provide a basis for recusal: many of the defendants live in the same cities and towns where the judges and their families live; some of the defendants are delegates who may represent the judges' districts; the defendants who are attorneys practice law in this district and the judges of this court “all have at least a professional, and likely personal” relationship with them and with certain institutional defendants and government agents; and the first-named defendant, Gary Bowman, previously clerked for Judge Moon. None of these provide a basis for the undersigned to recuse.[1]

         With regard to her suggestion that the undersigned should recuse because another judge of this court, United States Magistrate Judge Robert S. Ballou, is a potential witness in the case or may be called to testify and produce discovery, the court does not believe that warrants recusal at this time.

         First of all, it is not even clear that any claims requiring testimony from Judge Ballou will survive a motion to dismiss or that his testimony will be necessary. Indeed, even in cases where there is “speculation to the possibility that” the presiding judge will be a material witness in the proceeding, that is not always enough to require recusal. United States v. Lanier, No. 2:14-CR-83, 2018 WL 296725, at *5 (E.D. Tenn. Jan. 3, 2018) (collecting authority). At least at this stage of the case, the court cannot say with any certainty that Judge Ballou is likely to be a witness.

         More importantly, even if Judge Ballou ultimately is called to give testimony, he will be testifying merely about events that occurred in the course of a mediation that he conducted in his role as a judge. Specifically, at least in the current version of plaintiff's allegations contained in the amended complaint, references to Judge Ballou all revolve around his mediating the case of CVLR Performance Horses, Inc. v. Wynne, No. 6:14-cv-35 (W.D. Va.) in 2016. Rivers does not accuse Judge Ballou of any wrongdoing, and she simply argues that false statements were made by her then-attorney and by others during the course of that mediation and a related conference call. Presumably, Rivers proposes calling Judge Ballou to testify about what was said during those proceedings.

         In considering the importance of this potential testimony, it is important to note that the amended complaint is lengthy and contains varied and far-reaching allegations against a large number of persons and organizations who Rivers alleges have wronged her.[2] Thus, the incidents in which Judge Ballou ...

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