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Drake v. Travelers Indemnity Co.

United States District Court, D. Maryland

October 23, 2019

E.V. DRAKE, Plaintiff
v.
TRAVELERS INDEMNITY COMPANY, et al Defendants

          MEMORANDUM

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         The self-represented plaintiff, E.V. Drake, filed a Complaint on September 18, 2019, approximately 80 pages in length. ECF 1. The Complaint names numerous defendants, including President Donald J. Trump, Vice President Michael Pence, Melania Trump, Karen Pence, the spouses of several Supreme Court Justices, the spouses of several judges of the United States District Court for the Eastern District of Texas, as well as Travelers Indemnity Co. and other defendants that appear to be Texas corporations or Texas government entities.

         Drake alleges, inter alia, that he “possesse[s] gifts of foresight . . . . [and] has predicted the majority of his close family members [sic] death, and has even described the day of their funerals before the event took place. These were not guesses, but a true gift bestowed upon Plaintiff by the Almighty.” ECF 1 at 12. He predicts two coming disasters: an earthquake in California and hurricanes in the Gulf Coast and East Coast. Id. at 11. Further, plaintiff alleges that he contacted the President and the Vice-President and their wives regarding his predictions and his ability to foresee the future, but they took no action. Id. As a result, plaintiff maintains that the United States suffered the worst hurricanes in the history of the country as well as the wild fires in California. Id. at 14. Plaintiff contends there is time to avert the other disasters he has foreseen and that it is negligence, a breach of duty, a violation of due process, and the intentional infliction of emotional distress for the President, Vice-President, and their wives to fail to meet with plaintiff and prepare for his predictions. Id. at 15-22, 75.

         Additionally, plaintiff asserts that the administration “has failed the American people . . . .” Id. at 19. He states: “The rejection of spiritual gifts by nonbelievers is not something uncommon but to be provided with information that American lives are at risk, as commander in chief and failed to take some action to at least investigate the matter is a breach of duties.” Id. at 18-19.

         Further, plaintiff alleges that the federal judges in the Eastern District of Texas acted improperly in denying motions plaintiff filed in another case, and in entering orders in that case. ECF 1 at 58. He also claims that state and federal judges harbor racial bias and intentionally harmed him as a result of action taken in his other case. Id. at 66. Moreover, he seeks declaratory relief against several of the judges and he asks that they be enjoined from hearing any of his cases. Id. at 67- 69.

         Additional allegations are included in the Discussion.

         Plaintiff has also filed a motion seeking my recusal. ECF 2. He claims that I have conspired with the Clerk of the Court to withhold the issuance of summonses. Id. at 4. He cites 28 U.S.C. § 144 and § 455. Id. at 3.[1]

         Plaintiff has paid the filing fee. And, the Court is mindful of its obligation to construe liberally the filings of a pro se litigant, which are held to less stringent standards than filings drafted by an attorney. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also White v. White, 886 F.2d 721, 722-23 (4th Cir. 1989). Nevertheless, this Court may dismiss a complaint, or portions of a complaint, sua sponte, where the matters asserted are plainly frivolous. Smith v. Kagan, 616 Fed.Appx. 90 (4th Cir. 2015); see also Chong Su Yi v. Soc. Sec. Admin., 554 Fed.Appx. 247, 248 (4th Cir. 2014) (same); Ross v. Baron, 493 Fed.Appx. 405, 406 (4th Cir. 2012) (same). Notably, “dismissal prior to service of process is permissible when a Court lacks subject matter jurisdiction over a patently frivolous complaint.” Smith, 616 Fed.Appx. at 90; Chong Su Yi, 554 Fed.Appx. at 248 (same); Ross, 493 Fed.Appx. at 406 (same).

         No hearing is necessary to resolve the recusal motion. Local Rule 105.6. For the reasons that follow, I shall deny the recusal motion; I shall dismiss the Complaint in part; and I shall transfer the remainder of the suit to the United States District Court for the Eastern District of Texas.

         Discussion

         I. The Recusal Motion

         Section 455 of 28 U.S.C. is titled “Disqualification of justice, judge, or magistrate judge.” Under § 455, the judge whose objectivity is being challenged by a motion to recuse is the one who should first review the matter and render the disqualification decision.

         Section 455(a) focuses on the appearance of impropriety. It states: “Any justice, judge, or magistrate judge of the United States shall disqualify [herself] in any proceeding in which [her] impartiality might reasonably be questioned.” The test “embodies an objective standard” and asks “whether an objective, disinterested, lay observer fully informed of the facts . . . would entertain a significant doubt about a judge's impartiality.” Parker v. Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir. 1988). The provision is intended to promote confidence in the judiciary. Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847, 865 (1988).

         As the Supreme Court has noted, § 455(a) “deals with the objective appearance of partiality.” Liteky v. United States, 510 U.S. 540, 553 n.2 (1994) (emphasis in Liteky). Disqualification is required “only if it appears that [a judge] harbors an aversion, hostility or disposition of a kind that a fair minded person could not set aside when judging the dispute.” Id. at 558. This objective standard includes not only actual impartiality, but also the appearance of impartiality. See United States v. Carmichael, 726 F.2d 158, 160 (4th Cir. 1984). In other words, “[t]he inquiry is whether a reasonable person would have a reasonable basis for questioning the judge's impartiality, not whether the judge is in fact impartial.” In re Beard, 811 F.2d 818, 827 (4th Cir. 1987) (internal citation omitted).

         Notably, a “presiding judge is not . . . required to recuse [herself] simply because of ‘unsupported, irrational or highly tenuous speculation.'” United States v. Cherry, 330 F.3d 658, 665 (4th Cir. 2003) (quoting United States v. DeTemple, 162 F.3d 279, 287 (4th Cir. 1998)). Rather, “[t]he alleged bias must derive from an extra-judicial source [and] . . . result in an opinion on the merits on a basis other than that learned by the judge from [her] participation in the matter.In re Beard, 811 F.2d at 827 (emphasis added); see Shaw v. Martin, 733 F.2d 304, 308 (4th Cir. 1984). Simply put, “[t]he proper test to be applied is whether another with knowledge of all of the circumstances might reasonably question the judge's impartiality.” In re Beard, 811 F.2d at 827.

         Moreover, 28 U.S.C. § 455(b) enumerates circumstances in which a federal judge “shall” disqualify herself, because partiality is presumed. See Richard K. Neumann, Jr., Conflicts Of Interest In Bush v. Gore: Did Some Justices Vote Illegally?, 16 Geo. J. Legal Ethics 375 at 5 (Spring 2003). For example, § 455(b)(5)(iii) states that a judge shall recuse herself if she has “an interest that could be substantially ...


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