Pickens v. Hendricks et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00030-MR
BRANDON PICKENS, )
)
Plaintiff, )
)
vs. )
)
STEVEN HENDRICKS, et al., ) ORDER
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on the pro se Plaintiff’s “Motion for
Leave and for Extension of Time to Conduct Defendants’ Depositions”
[Doc. 209] and Motion for Recusal [Doc. 217].
The pro se incarcerated Plaintiff filed this civil rights action pursuant
to 42 U.S.C. § 1983. The Complaint passed initial review on several § 1983
claims and the Court exercised supplemental jurisdiction over North
Carolina law claims. [Doc. 13]. Discovery closed on December 13, 2023,
and dispositive motions are due by January 17, 2024. [Doc. 190].
On November 22, 2023, the Plaintiff filed the instant “Motion for
Leave and Extension of Time to Conduct the Defendant’s Depositions.”
[Doc. 209]. He seeks to depose Defendants on written questions before a
prison notary, Sherry S. Townsend. He states that “Plaintiff is able to pay
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for the cost and fees associated with Sherry S. Townsend taking his
depositions upon written questions.” [Id. at 3]. He also seeks an extension
of time to conduct these depositions until January 21, 2024. [Id.].
The Motion is denied pursuant to the Court’s November 8, 2023
Protective Order which requires the Plaintiff to “demonstrate … his ability to
comply with the requirements of Fed. R. Civ. P. 31 and to pay for all the
written depositions and associated costs” before serving any more
depositions upon written question in this case. [Doc. 190 at 4-5]. The
Plaintiff fails to identify the Defendants whom he wishes to depose, and he
has not demonstrated his ability to pay the associated costs to the Court’s
satisfaction. His contentions that he has secured Ms. Townsend’s services
and is able to pay for the same, are contradicted by his recent claims of
indigence. [See Doc. 184 at 3 (stating that he is indigent and does not have
the resources to litigate this action); Doc. 167-1 (Sept. 18, 2023 Trust Fund
Account Statement showing a balance of $0.00)]. Accordingly, his request
to conduct written depositions is denied, and his request for an extension of
time to conduct the same is moot.
The Plaintiff also seeks the undersigned Judge’s recusal from this
action pursuant to 28 U.S.C. §§ 144, 455(a), and 455(b)(1). [Doc. 217].
The Plaintiff has filed a Declaration under penalty of perjury in support of
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this Motion. He states that the Court is prejudiced against him and biased
in favor of the Defendants in support of which he cites various rulings in this
case with which he disagrees. [Doc. 217-1]. He also states that the Court
has “prejudged” this case in light of Hyatt v. Miller, Case No. 1:19-cv-250-
MR,1 a case that the Court related to the instant action at the Plaintiff’s
request. [See Docs. 39, 50].
The Court previously denied a Motion for Change of Venue that it
liberally construed as seeking the undersigned’s recusal. [Doc. 63].
Although the Plaintiff now supports his Motion with a sworn declaration, it is
still insufficient to support relief under §§ 144 or 455. Plaintiff’s
disagreement with various Court rulings that he perceives to be incorrect or
unfair is insufficient to warrant recusal for the reasons discussed in the
Court’s previous Order. [See Doc. 82 at 10-12].
The Plaintiff’s objection to the Court’s knowledge of the Hyatt case
fails because such is not from an “extrajudicial” source. See United States
v. Grinnell Corp., 384 U.S. 563, 583 (1966) (“The alleged bias and
prejudice to be disqualifying must stem from an extrajudicial source and
result in an opinion on the merits on some basis other than what the judge
1 The Hyatt case was filed by Marcus Hyatt, the Plaintiff’s passenger at the time of the
vehicle stop at issue, and by Hyatt’s girlfriend, Ashley Barrett, who was detained in a
separate vehicle stop.
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learned from his participation in the case). Moreover, the Plaintiff moved to
relate the Hyatt case to this action; he will not be allowed to manufacture a
basis for recusal by his own conduct. See United States v. Owens, 902
F.2d 1154, 1156 (4th Cir. 1990) (cautioning against parties being allowed to
create grounds for recusal “by their own deliberate actions”). “To hold
otherwise would encourage inappropriate ‘judge shopping.’” Id.
Accordingly, the Plaintiff’s Motion for Recusal is denied.
The Plaintiff continues to inundate the Court with duplicative
filings in this case. He is cautioned to refrain from making further
duplicative, frivolous, or otherwise abusive filings. Any such future
filings may be stricken without notice, and may result in the
imposition of sanctions.
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff’s Motion for Leave and for Extension of Time to Conduct
Defendants’ Depositions [Doc. 209] is DENIED.
2. The Plaintiff’s Motion for Recusal [Doc. 217] is DENIED.
IT IS SO ORDERED.
Signed: December 20, 2023
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