Crandall Postell v. City of Cordele Georgia, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13636
Non-Argument Calendar
____________________
CRANDALL POSTELL,
Plaintiff-Appellant,
versus
CITY OF CORDELE GEORGIA,
a Georgia Municipal Corporation,
CITY COMMISSION,
of the City of Cordele,
CHAIRMAN JOHN WIGGINS,
VICE CHAIR JEANIE BARTEE,
ROYCE REEVES, SR., et al.,
as members in their official and individual capacities,
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2 Opinion of the Court 22-13636
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:19-cv-00148-LAG
____________________
Before N EWSOM , GRANT, and H ULL , Circuit Judges.
PER CURIAM:
Crandall Postell, proceeding pro se, appeals following the
district court’s dismissal of his third amended complaint for failure
to state a claim. On appeal, Postell argues the district court
(1) erred in denying his motion for recusal and (2) failed to
demonstrate why amending his complaint for a fourth time would
be futile. After careful review of the record, we affirm.
I. BACKGROUND
On August 30, 2019, Postell filed a pro se complaint with 130
allegations against 16 defendants. In December 2019, all
defendants except one moved to dismiss Postell’s complaint for
failure to state a claim. In January 2020, Postell filed his first
amended complaint and moved for leave to file that first amended
complaint.
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A. Dismissal without Prejudice and Leave to Amend
On September 29, 2020, the district court granted the
defendants’ motion to dismiss and dismissed without prejudice
Postell’s initial complaint as an impermissible shotgun pleading.
The district court explained that Postell’s initial complaint (1) failed
to separate causes of action into different counts, (2) made
“conclusory factual allegations,” and (3) “use[d] unnecessary legal
conclusions.”
Further, the district court found that Postell’s proposed first
amended complaint was also an impermissible shotgun pleading
because (1) it was “replete with conclusory, vague, and immaterial
facts not obviously connected to any particular cause of
action,” (2) it “fail[ed] to specify which counts [were] against which
[d]efendant,” and (3) each count incorporated and realleged all the
allegations preceding it. (Quotation marks omitted). For this
reason, the district court denied Postell’s motion for leave to file
his first amended complaint.
But the district court allowed Postell to file a motion for
leave to file a second amended complaint within 30 days. The
district court gave Postell the following instructions: (1) the second
amended complaint must “set forth separate, discrete causes of
action, pleaded in separate counts, which clearly identify the set of
circumstances or allegations supporting each claim against each
[d]efendant”; (2) he “must identify what precise conduct is
attributable to each individual [d]efendant”; and (3) he must “not
make conclusory legal statements or incorporate by reference all
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4 Opinion of the Court 22-13636
preceding paragraphs into each count.” The district court warned
Postell that “[f]ailure to comply may result in the dismissal with
prejudice and/or the imposition of sanctions.”
B. Postell’s Motions for Leave to Amend
On October 27, 2020, Postell moved for leave to amend his
complaint and attached his proposed second amended complaint.
But then, on December 9, 2020, Postell again moved for leave to
amend and attached his proposed third amended complaint.
C. Postell’s Motion for Recusal
On August 5, 2021, Postell moved to recuse the district court
judge—Judge Leslie Gardner—based on her alleged “ongoing daily
Illegal and Discriminatory Acts.” Postell noted that Judge Gardner
oversaw another case, Whitest v. Crisp County Georgia Board of
Education, et al., 1:17-cv-00109-LAG (M.D. Ga.), in which he was a
plaintiff.1 Postell asserted that Judge Gardner discriminated against
him as a non-attorney, prevented him from conducting discovery,
and delayed his two cases for over a year. Postell also claimed that
in Whitest, Judge Gardner “teamed up with all [the] parties” and
initiated ex parte communications with the defendants, in violation
of his constitutional rights.
1 Relevant to this appeal, in Whitest, Postell moved for sanctions against the
American Civil Liberties Union (“ACLU”) and some of its attorneys who were
representing the plaintiffs.
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D. Postell’s Third Amended Complaint
On August 9, 2021, the district court granted Postell’s
motion for leave to file a third amended complaint that Postell filed
back on December 9, 2020.
Postell’s third amended complaint contained 23 counts and
320 allegations against the following defendants: (1) the City of
Cordele, Georgia (“City”); (2) the Cordele Police Department;
(3) the Cordele City Commission; (4) City Commissioners John
Wiggins, Jeanie Bartee, Royce Reeves Sr., Vesta Beal Shepard, and
Wesley Rainey; (5) Former City Commissioner Zack H. Wade;
(6) Sergeant Louis New; (7) Judge G. Russell Wright; (8) Cotton
Law Firm; (9) Edwin T. Cotton; (10) Billy Cannon; and (11) Mike
Fraser’s Auto Repair & Wrecker Service, Inc. (“Mike Fraser’s Auto
Repair”).
Counts 1 to 15, 17 to 18, and 20 to 23 raised federal claims
under 42 U.S.C. § 1983 for conspiracy to violate his constitutional
rights and for violations of his First, Fourth, and Fourteenth
Amendment rights. Counts 16 and 19 asserted claims for
negligence and conversion, respectively, under Georgia law.
Postell sought (1) declaratory and injunctive relief, (2) attorneys’
fees, and (3) compensatory and punitive damages.
On August 30, 2021, all defendants—except Billy Cannon
and Mike Fraser’s Auto Repair—moved to dismiss Postell’s third
amended complaint.
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E. Denial of Recusal and Postell’s Motion for Leave to
Amend a Fourth Time
On March 14, 2022, the district court denied Postell’s motion
for recusal. The district court (1) explained that grievances against
a judge’s rulings and routine case administration efforts were not
valid grounds for recusal and (2) concluded that Postell pointed to
no evidence that the court harbored a personal bias against him or
in favor of another party.
On April 29, 2022, Postell moved for leave to file a fourth
amended complaint in order to add two newly elected members of
the City Commission and Regions Bank as defendants.
F. Dismissal Order
On September 30, 2022, the district court (1) dismissed the
claims against Billy Cannon and Mike Fraser’s Auto Repair for
failure to serve, (2) granted the remaining defendants’ motion to
dismiss Postell’s third amended complaint, and (3) denied Postell’s
motion for leave to file a fourth amended complaint.
To begin with, the district court explained that, although it
was dismissing Postell’s third amended complaint for failure to
state a claim, it could have dismissed the third amended complaint
as an impermissible shotgun pleading because it was “replete with
conclusory, vague, and immaterial facts not obviously connected
to any particular cause of action.” The district court also explained
that the City Commission and the Cordele Police Department are
not entities that can be sued.
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Then, the district court turned to the federal claims (Counts
1 to 15, 16 to 18, and 20 to 23) and explained why each one failed
to state a claim. As for Postell’s state law claims (Counts 16 and
19), the district court declined to exercise supplemental jurisdiction
over them because it had dismissed all his federal claims and found
that he could still prosecute the state law claims in state court.
Lastly, regarding the denial of Postell’s motion for leave to
file a fourth amended complaint, the district court concluded that
nothing suggested another amended complaint would produce
sufficient claims because (1) Postell had received multiple
opportunities to amend his pleadings, (2) he failed to comply with
the court’s specific instructions on how to cure the deficiencies in
his pleadings, and (3) he filed a cursory response to the motion to
dismiss.
Following entry of final judgment, Postell timely appealed.
II. MOTION TO RECUSE
On appeal, Postell challenges the district court’s denial of his
motion to recuse. Below, we set forth our standards of review and
the statutes governing recusal, and then we explain why Postell’s
challenge fails.
A. Standards of Review
Typically, we review a denial of a motion for recusal for
abuse of discretion. In re Walker, 532 F.3d 1304, 1308 (11th Cir.
2008). “A district court abuses its discretion if it applies an incorrect
legal standard, applies the law in an unreasonable or incorrect
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manner, follows improper procedures in making a determination,
or makes findings of fact that are clearly erroneous.” Diveroli v.
United States, 803 F.3d 1258, 1262 (11th Cir. 2015) (quotation marks
omitted).
However, if a party fails to make a recusal argument to the
district court, we review for plain error. Hamm v. Members of Bd. of
Regents, 708 F.2d 647, 651 (11th Cir. 1983). Under plain error
review, the party raising the issue has the burden to show that
(1) there is error (2) that is plain (3) that affects a
defendant’s substantial rights and (4) that “not correcting the error
would seriously affect the fairness of the judicial proceeding.”
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1329 (11th Cir.
1999).
B. Recusal Generally
Recusal is governed by 28 U.S.C. §§ 144 and 455. United
States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004). Under § 144, a
judge must recuse herself when a party to a district court
proceeding 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. 28 U.S.C. § 144.
To warrant recusal under § 144, the moving party must, among
other things, allege facts that would convince a reasonable person
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22-13636 Opinion of the Court 9
that bias actually exists. United States v. Serrano, 607 F.2d 1145, 1150
(5th Cir. 1979).2
Section 455 designates two primary reasons that a judge
must recuse herself. United States v. Patti, 337 F.3d 1317, 1321 (11th
Cir. 2003). First, under § 455(a), a judge “shall disqualify h[er]self
in any proceeding in which h[er] impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). The standard of review for
whether a judge should have recused herself under § 455(a) “is
whether an objective, disinterested, lay observer fully informed of
the facts underlying the grounds on which recusal was sought
would entertain a significant doubt about the judge’s impartiality.”
Patti, 337 F.3d at 1321 (quotation marks omitted).
Second, under § 455(b)(1), a judge shall also disqualify
herself if “[s]he has a personal bias or prejudice concerning a party,
or personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b)(1). The Supreme Court, however,
has stated that “judicial rulings alone almost never constitute a
valid basis for a bias or partiality motion.” Liteky v. United States,
510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994). Indeed, bias “must
stem from extrajudicial sources, unless the judge’s acts
demonstrate such pervasive bias and prejudice that it unfairly
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),
this Court adopted as binding precedent all decisions of the former Fifth
Circuit decided prior to October 1, 1981.
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prejudices one of the parties.” Berger, 375 F.3d at 1227 (quotation
marks omitted).
C. Application to Postell
Here, Postell challenges Judge Gardner’s impartiality on
three grounds. We address each in turn.
First, Postell contends that Judge Gardner is biased because
she intentionally delayed this case for over a year and “prevented”
him from discovery.3 These complaints amount to nothing more
than disagreements with Judge Gardner’s docket administration,
timeliness, and judicial rulings and are thus not valid bases for
recusal. See Liteky, 510 U.S. at 556, 114 S. Ct. at 1157 (explaining
that “[a] judge’s ordinary efforts at courtroom administration” are
not grounds for recusal); In re Evergreen Sec., Ltd., 570 F.3d 1257,
1274 (11th Cir. 2009) (“Challenges to adverse rulings are generally
grounds for appeal, not recusal.”); Loranger v. Stierheim, 10 F.3d 776,
780–81 (11th Cir. 1994) (explaining that a district court’s delay does
not require recusal). Judge Gardner did not abuse her discretion in
denying Postell’s motion for recusal on this basis.
Second, Postell argues that Judge Gardner is biased because
she engaged in ex parte communications with opposing parties
3 The defendants moved to stay discovery pending a ruling on their motions
to dismiss Postell’s initial and third amended complaints. Postell did not
respond to those motions to stay. Exercising her broad discretion to stay
discovery and pretrial deadlines, see Panola Land Buyers Association v. Shuman,
762 F.2d 1550, 1560 (11th Cir. 1985), Judge Gardner granted both motions to
stay discovery.
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22-13636 Opinion of the Court 11
regarding a potential consent order in Whitest. In support, Postell’s
brief on appeal purports to quote or paraphrase excerpts from a
telephonic hearing in Whitest.
But the transcript of that hearing is not in the record in this
case, and Postell thus lacks evidence to support the statements in
his brief. In any event, the portions of the transcript that Postell
purports to quote or paraphrase do not reveal any pervasive bias
or prejudice warranting recusal. Rather, the excerpts indicate that
(1) Judge Gardner asked whether Postell and other pro se plaintiffs
had consented to the proposed settlement and explained that she
did not believe she could enter a consent order without the consent
of all parties; (2) counsel for the other plaintiffs disagreed; (3) Judge
Gardner and counsel discussed her legal authority to enter the
proposed consent order without the agreement of all parties; and
(4) eventually, Judge Gardner ordered the parties to brief the issue
and stated that she would not get into the “substantive issues”
without everyone present. This exchange between a judge and a
lawyer from an unrelated case does not provide a basis for Judge
Gardner’s recusal in this separate case. See Bolin v. Story, 225 F.3d
1234, 1239 (11th Cir. 2000) (“[E]xcept where pervasive bias is
shown, a judge’s rulings in the same or a related case are not a
sufficient basis for recusal.”). Judge Gardner did not abuse her
discretion in denying Postell’s motion for recusal on this basis.
Third, Postell contends that Judge Gardner’s impartiality
might reasonably be questioned because (1) he filed a motion for
sanctions against the ACLU in Whitest and (2) were Judge Gardner
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to grant his motion for sanctions, “the ACLU would lose [a]
substantial amount of money and so would Judge Gardner’s sister,
Stacey Abrams,” who participated in multiple “highly-publicized
efforts with the ACLU.”
As an initial matter, Postell did not make this argument in
the district court. Accordingly, we review this contention for plain
error. See Hamm, 708 F.2d at 651; see also Curves, LLC v. Spalding
Cnty., 685 F.3d 1284, 1287 n.2 (11th Cir. 2012).
We readily conclude that there is no error—let alone plain
error—in Judge Gardner’s failure to recuse herself because of the
alleged connections between her sister and the ACLU. Postell does
not explain how the alleged favoritism of another party (the ACLU)
in a different case (Whitest) would result in an objective observer
questioning Judge Gardner’s impartiality in this case—where
neither her sister nor the ACLU is a party.
In sum, we affirm the district court’s denial of Postell’s
motion for recusal.
III. MOTION FOR LEAVE TO FILE A FOURTH
AMENDED COMPLAINT
On appeal, Postell also argues that the district court failed to
explain why amending his complaint a fourth time would be futile.
We generally review the denial of a motion to amend a
complaint for an abuse of discretion. Coventry First, LLC v. McCarty,
605 F.3d 865, 869 (11th Cir. 2010). Leave to amend “should be
freely given” if the “underlying facts or circumstances relied upon
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22-13636 Opinion of the Court 13
by a plaintiff may be a proper subject of relief.” Hall v. United Ins.
Co. of Am., 367 F.3d 1255, 1262 (11th Cir. 2004) (quotation marks
omitted). However, a court may deny leave to amend the
complaint “when such amendment would be futile.” Id. at 1263.
An amendment is futile when the complaint as amended would
still be subject to dismissal. Id.
Here, the district court did not abuse its discretion in
denying Postell’s motion for leave to file a fourth amended
complaint. The district court had already given Postell multiple
opportunities to amend his complaint to state a valid claim for
relief. In fact, Postell filed an initial complaint followed by three
amended complaints. Despite these opportunities and explicit
instructions from the district court on how to avoid dismissal of his
complaint, Postell’s third amended complaint still failed to properly
plead any federal claim for relief and was “replete with conclusory,
vague, and immaterial facts not obviously connected to any
particular cause of action.”
Moreover, nothing in the proposed fourth amended
complaint ameliorated the deficiencies in the third amended
complaint. Rather, Postell merely sought to add two additional
defendants, while the remainder of the proposed fourth amended
complaint was largely identical to the third amended complaint.
Because granting Postell’s motion for leave to file a fourth
amended complaint would have been futile, the district court did
not abuse its discretion in denying the same. See Hall, 367 F.3d at
1262–63.
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IV. CONCLUSION
For these reasons, we affirm the district court’s denial of
Postell’s motion for recusal and motion for leave to file a fourth
amended complaint.4
AFFIRMED.
4 Although Postell titles a portion of his opening brief “MOTION TO
DISMISS,” he does not appear to challenge the district court’s reasons for
dismissal. Thus, Postell abandoned any challenge on appeal, beyond those
already discussed supra, to the district court’s dismissal of his third amended
complaint. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th
Cir. 2004).
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