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Acute McDaniel v. Charlotte Mecklenburg Schools

United States District Court, W.D. North Carolina, Charlotte Division

April 18, 2018

TIGRESS SYDNEY ACUTE MCDANIEL, on behalf of A.M., Plaintiff,
v.
CHARLOTTE MECKLENBURG SCHOOLS, et al., Defendants.

          ORDER

          ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on an initial review of Plaintiff's Complaint, (Doc. No. 1), on Plaintiff's Motion to Proceed in Forma Pauperis, (Doc. No. 2), and on Plaintiff's “Motion for Recusal of Judge Conrad, Jr., ” (Doc. No. 3).

         I. BACKGROUND

         Pro se Plaintiff Tigress Sydney Acute McDaniel, a resident of Charlotte, North Carolina, filed this action on March 15, 2018, purportedly on her own behalf and on behalf of her minor son, “A.M.” Plaintiff has named numerous Defendants, including “Charlotte-Mecklenburg Schools, ” “Charlotte-Mecklenburg Board of Education, ” administrators and teachers at various Charlotte-Mecklenburg schools, private individuals, and an attorney representing Charlotte-Mecklenburg Schools. Plaintiff purports to bring an action under 42 U.S.C. § 1983, 42 U.S.C. § 1985, “Section 504 of the Americans with Disabilities Act” (“ADA”), [1] and various state torts, including “conspiracy and public corruption, ” “public corruption, ” “de facto discrimination, ” and “negligence, ” arising out of treatment her minor son allegedly received while attending various public schools in Charlotte, North Carolina. Plaintiff alleges that her minor son was under a “504” plan in the public schools due to various medical conditions, and Defendants committed various state law torts and violated the ADA by, among other things, failing to properly address her son's medical condition. (Id. at 4). As relief, Plaintiff seeks compensatory damages, punitive damages, a “formal apology” from Defendants, and all other forms of “appropriate” relief. (Id. at 13).

         The Court first addresses Plaintiff's motion to proceed in forma pauperis. Plaintiff's affidavit shows that she has had a total monthly income of $3, 928 for the past twelve months (which appears to include payments from an educational loan), and she expects to receive the same amount in income next month. (Doc. No. 2 at 5). Plaintiff reports that she has $120 in cash and $120 in a checking account. (Id. at 2). Plaintiff reports total monthly expenses of $4, 004. (Id. at 5). In explaining why she cannot pay the costs of these proceedings, Plaintiff states, “The absent parent . . . paid only $118 last period, as opposed to $261.00, which is routinely paid every two weeks.” (Id.). The Court is satisfied that Plaintiff does not have sufficient funds to pay the filing fees. The Court will, therefore, allow the motion and permit Plaintiff to proceed in forma pauperis.

         II. STANDARD OF REVIEW

         Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious [or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore, Secion 1915A requires an initial review of a “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, ” and the Court must identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be granted; or seeks monetary relief from a defendant who is immune from such relief.

         In its frivolity review, this Court must determine whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). Furthermore, a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in his Complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).

         III. DISCUSSION

         A. Plaintiff's Motion to Recuse

         First, as to Plaintiff's motion for recusal of the undersigned, Plaintiff alleges the following in support:

There exists sufficient evidence in Judge Conrad Jr.'s orders in response to Plaintiff's pleading that far exceed the threshold for reasonable appearance of bias against her. Upon information and belief, Plaintiff asserts and alleges that Judge Conrad, Jr. has been tainted by corrupt judicial and legal officials, and has agreeably or alternatively been coerced to conspire with other corrupt judicial and legal officials to subject her to unlawful impediment by prematurely dismissing her valid claim related to second case filed in this jurisdiction. Plaintiff asserts that her first action filed in this jurisdiction was adjudicated impartially, and markedly in favor for the IFP and proceeding to trial on the merits of the case surviving the Defendants' Motion to Dismiss, under an opining that was substantiation of her claims and no frivolity to merit dismissal of her action. However, when Plaintiff submitted her second action against Defendants who have knowingly, routinely, maliciously conspired corruption against Plaintiff for a period spanning over a decade including both a criminal matter and civil action to execute a money judgment in her favor, suddenly Judge Conrad, Jr.'s disposition toward her negatively changed. Plaintiff, on behalf of her son, asserts that she and her Son will sustain irreparable harm if subjected to unlawful impediment at the hand of Judge Conrad, Jr., who has exhibited unlawful bias against her. As a matter of law and in the interest of justice, no legality is compromised in the assignment of another judge.

See (Doc. No. 3 at 1-2). The Court will deny the motion to recuse. A judge may be recused for personal bias or prejudice, having a familial or fiduciary interest in the proceeding, having personal knowledge of disputed facts, or having a conflict of interest from his prior practice. See 28 U.S.C. §§ 144, 455. Plaintiff has not asserted sufficient facts setting forth grounds for disqualification of the undersigned under either 28 U.S.C. § 144 or § 455.[2] That is, Plaintiff's allegations in support of the motion to recuse are vague, and the Court further finds that a prior unfavorable ruling against Plaintiff is not sufficient grounds to justify recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994) (noting that prior judicial rulings alone are not a basis for a motion for recusal on the grounds of bias or partiality). “[T]he nature of the judge's bias must be personal and not judicial.” In re Beard, 811 F.2d 818, 827 (4th Cir. 1987). In sum, for the reasons stated herein, the motion for recusal is denied.

         B. ...


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